BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 63
•22 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 63
File number(s): SYG 1087 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 22 September 2021 Catchwords: MIGRATION – application for extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in relation to the giving of notice under s 501CA(3) of the Act of a cancellation decision made under s 501(3A) of the Act – order made – whether the acts constituting the giving of notice of the cancellation decision were the acts of the Minister or of his delegate or of some other Departmental officer – acts were those of a Departmental officer and for that reason the Minister gave the applicant the notice s 501CA(3) of the Act required the Minister to give. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 494A(1), 494B, 501(3A), 501CA(1), 501CA(3), 501CA(4), 476, 477(1), 477(2), 496, 497(2)
Cases cited: BYN18 v Minister for Home Affairs [2018] FCCA 3838
BYN18 v Minister for Home Affairs [2019] FCA 1033
BYN18 v Minister for Home Affairs [2020] FCAFC 80
Carltona Ltd v Commissioners of Works [1943] 2 ALL ER 560
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Border Protection v EFX17 [2021] HCA 9
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
O’Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1
R (Bourgass) v Secretary of State for Justice [2016] AC 384
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 3 September 2021 Place: Sydney Counsel for the Applicant: Mr O Jones, by video Solicitor for the Applicant: Turner Coulson Immigration Lawyers Counsel for the Respondent: Mr G Johnson, by video Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
SYG 1087 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYN18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
22 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) the 35 day period prescribed by s 477(1) of the Act for making an application for relief under s 476 of the Act is extended to 18 April 2018.
2.The application is dismissed.
3.The applicant pay the respondent’s costs set in the amount of $6,800.
THE COURT NOTES THAT:
4.These orders are the orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for an order under s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s 477(1) of the Act for making an application to this Court for a remedy under s 476 of the Act. The application relates to the circumstances in which the applicant was notified of a decision made by a delegate of the first respondent (Minister) on 4 April 2017 under s 501(3A) of the Act to cancel the applicant’s Class XA Subclass 866 Protection visa (Protection visa). The applicant seeks an order under s 477(2) of the Act to be in a position to contend that the manner in which he was notified of the cancellation of his Protection visa did not meet the requirements of s 501CA(3) of the Act.
At the commencement of the hearing I suggested to counsel for the parties, and counsel agreed, that I should hear both the application for an order under s 477(2) of the Act, and the merits of the application, assuming an order under s 477(2) of the Act is made.
BACKGROUND
The applicant is a national of Iran. He arrived in Australia in 2011 and, on 18 March 2013, he was granted a Protection visa.
On 4 April 2017 a delegate of the Minister decided to cancel the applicant’s Protection visa pursuant to s 501(3A) of the Act. At that time the applicant was held in a particular correctional facility (Correctional Facility).
The decision to cancel the applicant’s Protection visa was an “original decision” within the meaning of s 501CA(1) of the Act to “cancel a visa that has been granted to a person”. The decision, therefore, engaged s 501CA(3) of the Act, which provides:
As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(3) must be read with s 497(2) of the Act, which provides:
If the Minister delegates the power to cancel visas, the delegation does not require the delegate personally to perform any task in connection with the cancellation, except the taking of a decision in each case whether a visa should be cancelled.
The High Court considered the effect of these two provisions in Minister for Immigration and Border Protection v EFX17;[1] and what the High Court said may be summarised as follows:
(a)Subsection 501CA(3) of the Act imposes a duty on the Minister. The duty, however, is not for the Minister personally to give a written notice and particulars and to invite representations; the duty is for the Minister “to ensure that the acts are done”.[2]
(b)The general power of delegation in s 496 of the Act empowers the Minister, by writing signed by him or her, to delegate the performance of the duty in s 501CA(3). Any such delegation, however, would not require the delegate personally to perform the duties to give a written notice and particulars, or personally to deliver the invitation to make representations any more than it would require the Minister to do so.[3]
(c)This construction of the duty s 501CA(3) of the Act imposes on the Minister is based in part on administrative necessity;[4] and the duty under s 501CA is “extended by s 497(2), which permits a delegate to act through a duly authorised officer of the Department in the performance of any task in connection with the cancellation of a visa other than the taking of a decision to cancel the visa”.[5]
[1] Minister for Immigration and Border Protection v EFX17 [2021] HCA 9, [33]
[2] Minister for Immigration and Border Protection v EFX17 [2021] HCA 9, [33]
[3] Minister for Immigration and Border Protection v EFX17 [2021] HCA 9, [34]
[4] Minister for Immigration and Border Protection v EFX17 [2021] HCA 9, [35]
[5] Minister for Immigration and Border Protection v EFX17 [2021] HCA 9, [35] (emphasis in original)
What the High Court says only goes to the identity of the persons who must perform the duty s 501CA(3) imposes on the Minister. The duty need not be performed personally by the Minister. But the duty must nevertheless be performed; and it must be performed by an authorised person which, it may be supposed, would not include any person other than an officer of the Minister’s department.
On 4 April 2017 an officer from a section of the Department of Immigration and Border Protection (Department) known as the “National Character Consideration Centre” sent an email to a number of recipients including to the email address of the Correctional Facility. The email is as follows (emphasis in original):[6]
[6] CB1
CANCELLATION OF VISA
Name: [Applicant’s name]
Date of Birth: [Applicant’s birth date]
. . .
Please note that included with the formal notice is an acknowledgment of receipt – see page 6. Please have Mr [applicant’s name] complete this page and return a copy to our office, preferably via email or fax. Alternatively, please advise by responding to this email address confirming the date on which Mr [applicant’s name] received the cancellation notification with the attached documents.
A delegate of the Minister for Immigration and Border Protection has cancelled the visa held by Mr [applicant’s name] pursuant to s.501 of the Migration Act on 4 April 2017.
Please provide the attached cancellation documentation to Mr [applicant’s name]. It is important that the full documentation is provided to Mr [applicant’s name] without delay as there is a limited period of time in which to apply for revocation of the visa cancellation.
DIBP will make arrangements in respect of Mr [applicant’s name] following their release from criminal custody, including immigration detention pending their removal from Australia, if necessary.
There was attached to that email a notice dated 4 April 2017. It is in the form of a letter from the Department addressed to the applicant (Notice). The top right hand corner of the Notice contains the words “By Hand”. The Notice informs the applicant that his Protection visa was cancelled on 4 April 2017 under s 501(3A) of the Act because the Minister was satisfied the applicant did not pass the “character test”; the applicant has an opportunity to make representations about revoking the decision to cancel his Protection visa; and that the decision to cancel the applicant’s Protection visa may be revoked by the Minister under s 501CA(4) of the Act. The Notice also referred to the “Time-frame to make representations about revocation”, noting that such representations “MUST be made within 28 days after you are taken to have received this notice”. The Notice later states:
As this notice was given to you by hand, you are taken to have received it when it was handed to you.
Page 6 of the Notice is addressed to the “Corrective services team”, and is as follows (emphasis in original):
Please refer to the acknowledgment of receipt below and have Mr [applicant’s name] complete this page and return a copy to this office, preferably by email . . . or fax . . .
. . . .
I acknowledge receipt of the Notice of visa cancellation under subsection 501(3A) of the Migration Act 1958 and a copy of the documents referred to above.
Mr [applicant’s name] (DOB: . . . ) …
Signature: ……………….
Date: ……………………..
(for urgent hand-delivered notifications – Corrective Services Officer to confirm delivery)
I confirm that the documents referred to above were handed to and received by the above-named person:
Name of Corrective Services Officer: …………………………….
Date: ………………………..
There is in evidence a copy of this part of the Notice that contains a signature next to the printed word “Signature”, a handwritten name next to the printed words “Name of Corrective Services Officer”, and a handwritten date next to each “Date”, the handwritten date being “5.04.17”. There is no dispute the signature is that of the applicant, and that the handwritten name is that of a corrective services officer at the Correctional Facility. Further, in a statement made on 17 January 2018, the applicant says he received the Notice on “4 [sic] April 2017”.[7] It is therefore open to find, and, to the extent it is relevant, I do find, that on 5 April 2017 a corrective services officer handed the Notice to the applicant.
[7] CB28, [4]
The applicant did not make any representations to the Minister. Instead, on 18 April 2018, the applicant filed an application in this Court. In the form of application a cross is placed in the box next to the words “Decision made by the Minister or another person under the Migration Act”, below which the following is printed:
Name of decision-maker: [position number of person who signed the Notice]
Office held: National Character Consideration Centre, Department of Immigration and Border Protection
Date of the decision: 4 April 2017
The application contains the following ground:
The Respondent failed to carry [out] his statutory duty.
PARTICULARS
a.The Migration Act 1958 s. 501CA(3) provides: “As soon as practicable after making the original decision, the Minister must:
(a) Give the person, in the [w]ay that the Minister consider[s] appropriate in the circumstances:
i. A written notice that sets out the original decision; and
ii. Particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about the revocation of the original decision”
b.The Respondent did not give the Notice to the Applicant.
c.The person who purported to give the Notice to the Applicant, Position Number . . ., did not hold a delegation from the Respondent to carry out his duty under the Migration Act 1958 s 501CA(3).
On 20 December 2018 a Judge of this Court dismissed the proceeding holding, among other things, that the purported notification is not a “decision” for the purposes of s 476 of the Act.[8] An application for relief under s 39B of the Judiciary Act 1903 (Cth) in relation to the orders the Judge made was dismissed by the Federal Court;[9] but on 14 May 2020 the Full Federal Court allowed the appeal, holding that the purported giving of the Notice was a “migration decision” within the meaning of s 476 of the Act. The Full Federal Court concluded:[10]
It is apparent from s 501CA(3), that the Minister must make a determination as to the way in which he or she considers the written notice required by the section is to be given to the person concerned. That determination is, in our opinion, properly characterised as a determination of an administrative character made under the Act. We are therefore satisfied that the giving of a notice under s 501CA(3) of the Act is a “privative clause decision” as defined by s 474 of the Act. It follows that we are also satisfied that the FCC had jurisdiction under s 476 to consider an application by the appellant for the review of that determination for jurisdictional error.
If the Minister did not consider how the notice should be given to the appellant but entrusted this function to a delegate who then made the relevant determination, then the FCC would have jurisdiction to determine whether the determination was made by a person duly authorised by the Minister and whether, as the Minister proposes to argue, a delegation in favour of that person under s 501(3A) of the Act is sufficient for that purpose. . . . For present purposes it is sufficient to note that the Minister no longer contends that the FCC lacked jurisdiction to hear and determine an application challenging the sufficiency of such a delegation.
[8] BYN18 v Minister for Home Affairs [2018] FCCA 3838
[9] BYN18 v Minister for Home Affairs [2019] FCA 1033
[10] BYN18 v Minister for Home Affairs [2020] FCAFC 80, at [19], [20]
SHOULD AN ORDER BE MADE UNDER s 477(2) OF THE ACT?
Under s 477(2) of the Act the Court may order the extension of the 35 day period prescribed by s 477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[11]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
[11] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, at [47]
The Federal Court has held that, on an application under s 477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[12] Further:[13]
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[12] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63] (cases cited omitted)
[13] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62] (cases cited omitted)
As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[14] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[15]
[14] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63]
[15] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62]
The applicant referred to the “applicable test” identified by Stewart J in Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[16]
The applicable test for determining whether to grant an extension of time was not in doubt. The Court must consider the extent of the delay, any prejudice a respondent might suffer because of the delay, the explanation for the delay, and the merits of the proposed application: see Singh v. Minister for Immigration and Border Protection [2017] FCA 150 at [19] and SZTRY v. Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. For the purposes of considering the issue of merit, the proposed grounds of review are examined at a reasonably impressionistic level: Guo v. Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].
[16] Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029, at [4]
There is in evidence a statement the applicant made on 17 January 2018 which sets out events from after the day on which the applicant says he received the Notice. The applicant there says he did not understand the full contents of the letter, but he was aware he had only 28 days to reply. The applicant then refers to dealings with three lawyers, and an inability to afford to retain a lawyer.
That the applicant was unable to afford a lawyer is not an adequate reason for the applicant’s substantial delay in commencing the proceeding. It cannot be said, however, that the applicant sat on his rights. The applicant was aware he required legal assistance, and he attempted to gain such assistance.
I next turn to the merits. For the reasons that appear below, I am satisfied there is merit in the ground on which the applicant intends to rely if an order under s 477(2) of the Act is made.
In these circumstances, I am satisfied that it is necessary in the interests of the administration of justice that an order be made under s 477(2) of the Act extending the time by which the applicant may apply to this Court in relation to the Notice the applicant was given up to and including 18 April 2018, being the day on which the applicant commenced this proceeding.
GROUND OF APPLICATION
Applicant’s submissions
The applicant accepts the delegate was not required personally to give the Notice to the applicant. The applicant also accepts that, in Minister for Immigration and Border Protection v EFX17,[17] the High Court held that s 497(2) of the Act expanded the scope of the principle for which Carltona Ltd v Commissioners of Works stands as authority (Carltona principle) to cover both procedural and substantive tasks.[18]
[17] Minister for Immigration and Border Protection v EFX17 [2021] HCA 9
[18] Carltona Ltd v Commissioners of Works [1943] 2 ALL ER 560
The applicant submits, however, that s 497(2) of the Act, as construed by the High Court in EFX17, does not affect what the applicant submits are the essential aspects of the Carltona principle. The Carltona principle provides that “when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his department”.[19] The applicant submits the Carltona principle applies where administrative necessity indicates it is impractical for a minister “to act otherwise than through his officers or officers responsible to him”;[20] and that, where the principle applies, duties imposed on ministers are “normally exercised under the authority of the ministers by responsible officials of the department”.[21] The applicant relies on the High Court’s observation in EFX17 that s 497(2) of the Act “permits a delegate to act through a duly authorised officer of the Department in the performance of any task in connection with the cancellation of a visa”.[22]
[19] O’Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1, at page 11
[20] Submissions of the Applicant, [17], quoting from the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, at page 38
[21] Submissions of the Applicant, [17] quoting from the judgment of Greene MR in Carltona Ltd v Commissioners of Works [1943] 2 ALL ER 560, at page 563 (applicant’s emphasis)
[22] Submissions of the Applicant, [18], quoting from Minister for Immigration and Border Protection v EFX17 [2021] HCA 9, at [35] (emphasis in original)
On the basis of these submissions, the applicant submits the Minister could only have given the Notice to the applicant personally, or by his or her delegate, or by an authorised Departmental officer. The applicant submits this did not occur. The Notice was given to the applicant by a corrective services officer who could not be characterised as an authorised Departmental officer. For this last submission the applicant relies on R (Bourgass) v Secretary of State for Justice,[23] where, the applicant submits, the Supreme Court of the United Kingdom held that a prison governor “was not the Carltona agent of the Secretary of State”.[24]
[23] R (Bourgass) v Secretary of State for Justice [2016] AC 384
[24] Submissions of the Applicant, [19]
In oral address counsel for the applicant submitted that s 501CA(3) of the Act contains two requirements; “First, the Minister has to decide how the notice is to be given. . . . And then the Minister must give the notice”.[25]
[25] T6.10
Minister’s submissions
After noting there is a distinction between the Minister’s duty in s 501CA(3) of the Act to “give” a person notice, and the act of “handing” the notice to the person, the Minister, in his written submissions, addresses the question whether the applicant “is correct to submit that the Minister failed to comply with his duty to “give” and to “invite” under s.501CA(3) in circumstances where a notice under s.501CA(3) is handed to a person by a prison officer”. The Minister submits that that question should be answered in the negative. First, the Minister submits that the applicant’s reliance on the Carltona principle is misguided because there is no question that the Minister delegated the power given under s 501(3A) to cancel the applicant’s Protection visa; and s 497 of the Act applied to relieve the delegate from personally performing tasks in connection with the cancellation of the applicant’s Protection visa, including the giving of a notice under s 501CA(3) of the Act. Second, the obligation under s 501CA(3) of the Act was for the Minister or, in this case, the delegate, to ensure that the tasks were performed which, in the circumstances of this case, required the applicant be given the Notice in the way the delegate considered appropriate; and this duty was performed because there is no dispute that on 5 April 2017 the applicant was given the Notice. The Minister also submits that, even if the applicant is correct, given there is no question the applicant was given the Notice on 5 April 2017, any departure from the requirements of s 501CA(3) of the Act should render invalid the giving of the Notice that in fact occurred.
DETERMINATION
The applicant is correct in submitting that the duty s 501CA(3) of the Act imposes on a Minister must be performed by the Minister, or by a delegate, or by a Departmental officer. The applicant is also correct in submitting that s 501CA(3) requires that the Minister or delegate, or some other Departmental officer, do two things, namely, first decide the way it would be appropriate, in the circumstances, to give a person whose visa has been cancelled under s 501(3A) written notice of the cancellation and particulars of the relevant information; and, second, give the person such written notice and particulars in the way the Minister, delegate, or other Departmental officer considered would be appropriate to give such notice and particulars.
Whether, therefore, the duty imposed by s 501CA(3) of the Act was discharged in the circumstances of the case before me turns on the determination of the following questions:
(a)Did any person consider the way in which it would be appropriate, in the circumstances of this case, to “give” the applicant a written notice that sets out the decision by which his Protection visa was cancelled under s 501(3A) of the Act and particulars of the relevant information?
(b)If (a) is answered in the affirmative, was that consideration given by the Minister, or by a delegate, or by some other Departmental officer?
(c)If (b) is answered in the affirmative, was notice given by the Minister, or delegate, or by some other Departmental officer in the manner it had been considered would be the appropriate way to “give” such notice?
The first and second of these questions are to be determined by inference from the contents of the Notice itself and the email to which the Notice was attached. The email and Notice describe the way in which written notice of the decision by which the applicant’s Protection visa had been cancelled and particulars of the relevant information was to be given to the applicant; and that was by the cancellation decision and particulars of the relevant information being recorded in the Notice, and by the Notice being transmitted to the email address of the Correctional Facility with instructions specifying the manner in which the Notice be brought to the attention of the applicant. Further, from the Notice’s having been apparently signed by an officer of the Department, and the email to the Correctional Facility having originated from the “National Character Consideration Centre”, it may be inferred, and I find, that it was a Departmental officer who considered that the transmission of the Notice to the email address of the Correctional Facility with instructions on how to bring the Notice to the applicant’s attention was the appropriate way of giving the applicant written notice of the cancellation decision and particulars of the relevant information.
That leaves the third question; and the answer to that question turns on what is meant by “give the person” when used in relation to the Minister, a delegate, or some other Departmental official, giving to a person a document. The expression “give the person” is not defined in the Act; nor is the word “give”. The word “give”, however, appears in provisions that specify methods by which the Minister may or must give a document to a person. Of relevance is s 494A(1) of the Act, which provides:
If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
The methods s 494B of the Act identifies for giving a document to a person include the “handing” of the document to the person, the dispatching of the document by prepaid post, and the transmission of the document by email. The availability of the methods for giving a document specified in s 494B of the Act manifests an intention that the word “give”, when used in the context of the Minister being required to give a document, as in s 501CA(3) of the Act, is not restricted to the handing of a document to a person. It manifests an intention that the word “give”, when used in connection with the giving of a document to a person, extends to methods that may involve persons over whom the Minister does not have any control, bringing a document to the notice of its intended recipient; and it may involve a method that does not even require the handing of the document to the intended recipient. That is the case when a document is given by sending it by prepaid post. Here the act of giving consists in delivering the document into the custody of the postal service, and it then becomes the responsibility of officers of the postal service to deliver the document to a specified address. The giving of a document by email also constitutes a form of giving that does not require the handing of a document to the intended recipient.
The applicant submits that the method by which it was considered appropriate to give notice to the applicant of the cancellation decision and particulars of the relevant information was by the Notice being handed to the applicant; and that the act of handing the Notice could only have been done by a Departmental officer, not by a corrective services officer located in the Correctional Facility. The applicant relies on the Notice containing the words “By Hand”.
It is true the Notice contains the words “By Hand”; and it is true it was contemplated the Notice would indeed be handed to the applicant. That, however, does not mean that this was the way the Minister, delegate, or other Departmental officer considered would be the appropriate way for the Minister or delegate to give the Notice to the applicant. The way the Minister, delegate, or Departmental officer considered would be the appropriate way in which the Minister or delegate would give notice to the applicant of the cancellation decision and particulars of relevant information was by the delegate or Departmental officer sending the Notice to the email address of the Correctional Facility with instructions that, when received, the Notice be handed to the applicant.
For the purposes of s 501CA(3) of the Act, therefore, the act by which the Minister gave the applicant notice of the cancellation decision and particulars of the relevant information was constituted by the delegate or Departmental officer transmitting the email attaching the Notice to the email address of the Correctional Facility; and that act was completed when the electronic version of the email and Notice exited the information system under the Department’s control. That means that the delivery of the Notice to the applicant by the corrective services officer did not form part of the act by which the Minister or delegate fulfilled or purported to fulfil the duty s 501CA(3) of the Act imposed on the Minister or delegate to give to the applicant notice of the cancellation decision and particulars of the relevant information. By the time the corrective services officer handed the Notice to the applicant, the Minister had already fulfilled the duty imposed on him by s 501CA(3) of the Act to give the applicant notice of the cancellation decision and particulars of the relevant information.
The ground on which the applicant relies, therefore, fails because the act by which, for the purposes of s 501CA(3) of the Act, the applicant was given notice of the cancellation decision and particulars of the relevant information was performed by the delegate of the Minister or by some other Departmental officer.
DISPOSITION
In addition to making an order under s 477(2) of the Act I propose to order that the application be dismissed.
Counsel agreed that costs should follow the event. Counsel for the Minister submitted that if the Minister were to succeed, the Minister would seek an order that his costs be set in the amount of $6,800. I am satisfied that amount reflects a fair indemnity of the costs the Minister has incurred in the proceeding, I will therefore order that the applicant pay the Minister’s costs set in the amount of $6,800.
I will note in the orders I propose to make that the orders are those of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), however, does not constitute any court by the name of the “Federal Circuit and Family Court of Australia”. Section 8 of the FCFCOA Act continues the existence of two federal courts and renames them. The first federal court the FCFCOA Act continues is the Court that, before 1 September 2021, was named the “Family Court of Australia”, and s 8(1) renames that Court the “Federal Circuit and Family Court of Australia (Division 1)”. The second federal court the FCFCOA Act continues is this Court which, before 1 September 2021, was named the “Federal Circuit Court of Australia”, but which s 8(2) of the FCFCOA Act renames the “Federal Circuit and Family Court of Australia (Division 2)”.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 22 September 2021
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