EBH22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 692
•8 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EBH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 692
File number(s): SYG 11 of 2023 Judgment of: JUDGE LAING Date of judgment: 8 August 2023 Catchwords: MIGRATION – application for judicial review of a decision by an officer of the Department – whether the applicant was effectively provided with the notice required under s 501CA(3) of the Migration Act 1958 (Cth) – whether the applicant made representations within the prescribed period – application succeeds Legislation: Migration Act 1958 (Cth) s 501CA
Migration Regulations 1994 (Cth) r 2.52
Cases cited: BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91; (2021) 285 FCR 43
Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 63; (2000) 60 ALD 482
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173; (2021) 288 FCR 158
Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; (2021) 271 CLR 112
Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; (2020) 281 FCR 578
Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of hearing: 18 July 2023 Place: Sydney Counsel for the Applicant: Mr S Rajanayagam Solicitor for the Applicant: Legal Aid Commission of NSW Counsel for the Respondent: Mr N Swan Solicitor for the Respondent: Sparke Helmore
Table of Corrections 26 February 2025 In the catchwords, a reference to “the Immigration Assessment Authority (“IAA”)” has been corrected to show “an officer of the Department”. ORDERS
SYG 11 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EBH22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
8 AUGUST 2023
THE COURT DECLARES THAT:
1.The respondent did not perform the duty required by s 501CA(3) of the Migration Act 1958 (Cth) (Act) by the purported notice given to the applicant on 5 August 2022.
THE COURT ORDERS THAT:
2.A writ of mandamus issue directing the respondent to make a decision under s 501CA(4) of the Act according to law.
3.The respondent pay the applicant’s costs fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
JUDGE LAING:
Before the Court is an application for judicial review of a decision by an officer of the Department of Home Affairs (Department) dated 29 November 2022. By that decision, it was determined that the applicant’s representations regarding revocation of a decision cancelling his visa had not been made within the prescribed timeframe. In consequence, it was found that the respondent (Minister) could not consider revoking the decision to cancel his visa under s 501CA(4) of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The applicant is a citizen of Afghanistan. He was granted a protection visa on 4 May 2006.
On 2 May 2022, the applicant was convicted of a number of offences. He was sentenced to 2 years and 6 months imprisonment. This was later varied to 18 months imprisonment on appeal.
On 4 August 2022, the applicant’s visa was cancelled. On the same day, an email was sent by the Department requesting that certain documentation be provided to the applicant by hand where he was residing at a Correctional Centre. That documentation included a Notice of Visa Cancellation dated 4 August 2022 (Notice of Cancellation) as well as several enclosures that were identified in the letter.
On 5 August 2022, the applicant signed an acknowledgment of receipt.
On 11 October 2022, the applicant’s representative wrote to the Department contending that, based upon their instructions, the applicant had been incorrectly notified of his visa cancellation. The correspondence contended that the applicant had only been handed some of the enclosures to the Notice of Cancellation. The letter also contended that the “documents that were handed to him were out of order – beginning with a Local Court Advice of Court Result and sentencing remarks, with the Notice behind them”.
The presentation of the documents in this manner, together with what was said to the applicant when he received them, was contended to have resulted in the notification being invalid. The letter requested that the applicant be “validly notified of the cancellation”, to allow him to make representations.
On 12 October 2022, a representative of the Department responded by email expressing the Department’s view that the notification had been valid. The email stated that all of the documents provided to the applicant were attached to the email, including an annexure labelled “Mandatory Cancellation Notification Package”.
On 3 November 2022, the applicant’s representative wrote to the Department by email reasserting the applicant’s claim that the full documentation had not been provided to him on 5 August 2022. In particular, the Revocation Request Form and Personal Circumstances Form (which were listed as enclosures in the Notice of Cancellation) were alleged to have not been provided. The representative stated that “[u]pon having received the complete notification documents on 12 October 2022” the applicant sought revocation of the mandatory cancellation of his visa. Representations seeking revocation were attached.
On 7 November 2023, the Department sought confirmation from the Correctional Centre as to whether the full group of documents had been provided to the applicant. However, there appears to have been some confusion initially as to which group of documents was being queried. Those at the Correctional Centre initially misunderstood the request as relating to the notice under s 254 of the Act and associated documents (Immigration Detention Notice Package) that the Department had also requested, by email on 4 August 2022, be conveyed to the applicant. After this had been clarified, a Sentence Administration Officer wrote to the Department on 8 November 2022 stating:
The inmate did received all of the paperwork on 05.08.2022, however we assume it was miss placed and have printed another copy for him for his records.
A further acknowledgment of receipt, dated 9 November 2022, was subsequently provided to the Department.
On 10 November 2022, the Department sent a letter by email to the applicant’s representative stating its view that the representations had not been made within the prescribed timeframe. The applicant’s representative responded on 16 November 2022, expressing the view that the applicant was notified of the cancellation on 9 November 2022 and attaching the acknowledgment of receipt bearing that date. A request for revocation of the cancellation was attached.
On 16 November 2022, the Department responded, expressing the view that the revocation request had been received out of time.
On 29 November 2022, the Department sent a further email to the applicant’s representative. The email explained that the second notification had occurred due to a further misunderstanding on the part of the Correctional Centre. It stated, however, that the Correctional Centre had confirmed that the “entire cancellation package” had been provided to the applicant on 5 August 2022. A file note of a conversation with staff at the Correctional Centre was attached. The Department’s “decision” on the “application for revocation” was also attached, which found that the application had been submitted out of time. The file note in question stated:
[The] Correctional Centre was contacted on 8 November 2022 in regards to the possible failure to deliver all visa cancellation documentation in specific the Mandatory Cancellation Notification Package.
At 12:15 hrs I contacted the centre and inquired whether they could assist in providing information about the visa cancellation documents that were provided to [the applicant] on 5 August 2022.
In specific I sought clarification on whether the Mandatory Cancellation Notification Package was missing from the original paperwork when the documentation was hand delivered to [the applicant].
The staff member advised me that she inquired with the officer who had delivered the documentation to [the applicant] in which they confirmed all documentation was provided to him.
I sought advice on whether the client himself may have misplaced the documentation.
In which the staff member confirmed that he had misplaced the documentation and had sought for another copy from prison staff.
LEGISLATION
Section 501CA of the Act relevantly provided:
Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) 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.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked…
Regulation 2.52 of the Migration Regulations 1994 (Cth) (Regulations) stated:
Refusal or cancellation of visa—representations in respect of revocation of decision by Minister (Act, s 501C and 501CA)
(1)This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.
(2) The representations must be made:
(a)for a representation under paragraph 501C(3)(b) of the Act—within 7 days after the person is given the notice under subparagraph 501C(3)(a)(i) of the Act; and
(b)for a representation under paragraph 501CA(3)(b) of the Act—within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act.
(3) The representations must be in writing, and:
(a) in English; or
(b)if the representations are in a language other than English—accompanied by an accurate English translation.
(4) The representations must include the following information:
(a) the full name of the person to whom the representations relate;
(b) the date of birth of that person;
(c) one of the following:
(i) the applicant’s client number;
(ii) the Immigration file number;
(iii)the number of the receipt issued by Immigration when the visa application was made;
(d)if the visa application was made outside Australia—the name of the Australian mission or Immigration office at which the visa application was given to the Minister;
(e)a statement of the reasons on which the person relies to support the representations.
(5) A document accompanying the representations must be:
(a) the original document; or
(b)a copy of the original document that is certified in writing to be a true copy by:
(i) a Justice of the Peace; or
(ii) a Commissioner for Declarations; or
(iii)a person before whom a statutory declaration may be made under the Statutory Declarations Act 1959; or
(iv) if the copy is certified in a place outside Australia:
(A)a person who is the equivalent of a Justice of the Peace or a Commissioner for Declarations in that place; or
(B) a Notary Public.
(6)If a document accompanying the representations is in a language other than English, the document must be accompanied by an accurate English translation.
(7)For section 501C of the Act (see subsection (10)), a person is not entitled to make representations about revocation of an original decision if:
(a) the person is not a detainee; and
(b) the person is a non-citizen in Australia; and
(c) either:
(i)the person has been refused a visa under section 501 or 501A of the Act; or
(ii)the last visa held by the person has been cancelled under either of those sections.
APPLICATION FOR REVIEW
The applicant commenced the current proceedings through an application filed on 22 December 2022. He ultimately relied upon an amended application filed on 14 April 2023 containing the following grounds:
1.The purported notice of the cancellation decision given to the applicant on 5 August 2022 did not discharge the respondent’s duty under s 501CA(3) of the Act.
Particulars
a.The respondent issued to the applicant a document titled “Notice of visa cancellation under section 501(3A) of the Migration Act 1958” dated 4 August 2022 (the [Notice of Cancellation]), marked to be delivered to the applicant by hand, and accompanying documents listed in the [Notice of Cancellation] comprising: a “Mandatory Cancellation Notification Package”; an advice of court result of the Local Court, an advice of court result of the District Court, sentencing remarks of the Local Court, and a “Conviction, Sentences and Appeals report” (together, “conviction and sentence documents”).
b.On 5 August 2022 the applicant was handed two sets of documents by a Corrective Services Officer (purported notice), comprising:
i. A notice under s 254 of the Act; and
ii.The conviction and sentence documents, followed by the [Notice of Cancellation], without the Mandatory Cancellation Notification Package.
c.The Corrective Services Officer who handed the documents to the applicant said to the applicant that the documents at (c)(ii) were a copy of his history from the court.
d.The purported notice did not invite the applicant to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the cancellation decision as required by s 501CA(3)(b) of the Act, because the purported notice was missing key components comprising the invitation, namely the Mandatory Cancellation Notification Package.
e.Further and alternatively to (d), the purported notice failed to convey the required information with sufficient clarity to constitute a written notice that sets out the cancellation decision and/or an invitation to make representations, within the period and in the manner ascertained in accordance with the regulations, about revocation.
2.The respondent gave notice of the cancellation decision and invited the applicant to make representation about revocation of the cancellation decision in accordance with s 501CA(3) of the Act on 9 November 2022, and the applicant made representations within the prescribed period.
Particulars
a.On 9 November 2022, a Corrective Services Officer handed the applicant the [Notice of Cancellation], Mandatory Cancellation Package and conviction and sentence documents.
b.The applicant made representations about revocation of the cancellation decision on 16 November 2022.
c.The representations were made within the 28-day period prescribed by reg 2.52(2)(b) of the Migration Regulations 1994.
Whilst the amended application also sought an extension of time under s 477(2) of the Act, by the time of the hearing the parties agreed that the relevant decision was dated 29 November 2022. The parties therefore agreed that an extension of time was unnecessary and that this Court had jurisdiction to determine the matter.
Both grounds of the amended application depended upon a finding that the 5 August 2022 notice was invalid, with the result that the representations made by the applicant were made within time.
FACTUAL MATTERS
The applicant gave evidence that an incomplete set of documents was handed to him by the Corrective Services Officer (CSO) who provided him with the Notice of Cancellation on 5 August 2022. His evidence was that he was handed two sets of documents on that date, comprising:
(a)the Immigration Detention Notice Package; and
(b)the conviction and sentence documents, followed by the Notice of Cancellation.
The applicant’s evidence was that when the documents were handed to him, the CSO told him that the first set came from the Department and that the second set “was [his] history that came from the Court”. The “Court bundle” was underneath the “Home Affairs bundle”. He accepted that he signed for the documents. He stated that he asked if the paperwork could be emailed to Legal Aid for advice, but was told that this could not be done for him. He therefore subsequently posted the documents to Legal Aid.
The applicant gave evidence that he had asked someone to read the Immigration Detention Notice Package to him because he had been told that it came from the Department. The applicant stated that he knew from speaking with other inmates that he would have 28 days to respond if he received a visa cancellation notice. He said that he had seen another inmates filling in revocation request forms. However, the applicant stated that because this paperwork did not ask him any questions, there were no forms to complete, and it did not refer to the 28 days he had thought that his 28 days had not yet started.
The applicant gave evidence that he had not asked anyone to read to him the Notice of Cancellation bundle of documents because he had been told that they were only records of his history from the Court.
In cross examination, the Minister put to the applicant that he may have misunderstood what was said to him by the CSO due to his limited ability to understand English. The applicant maintained that he had been able to understand the words that had been spoken by the CSO.
The Minister put to the applicant that he may have misplaced some of the documents within the Notice of Cancellation bundle, or they may have been taken from his cell. The applicant did not accept that this may have occurred and insisted that the bundle had been safe in his cell.
The Minister did not put to the applicant that his evidence should be disbelieved. However, the Minister did submit that the applicant had not discharged his burden of proof in establishing that what he said had happened. The Minister observed in submissions that the applicant had an interest in the outcome of these proceedings. The Minister also observed that there were some strange features to the evidence, such as a copy of an acknowledgment of receipt form that the applicant signed and dated 25 August 2022 before sending it to his lawyers, and his lawyers’ understanding in subsequent correspondence dated 11 October 2022 that they had been instructed that the applicant had been handed the documents on 25 August 2022 (rather than 5 August 2022).
However, the applicant explained in cross examination that he had signed and dated a copy of the form before sending it to his lawyers. He denied telling his lawyers that the documents had been handed to him on that date and it is unclear how this misunderstanding occurred.
Regardless, there was nothing about the manner in which the applicant gave his evidence at the hearing that belied its credibility. I accept that the applicant signed an acknowledgement on 5 August 2022 indicating that he had received the “Notice of visa cancellation under s501(3A) of the Migration Act 1958 and a copy of the documents” referenced in that letter. However, his evidence was that he had not read the document he signed when he was signing it. This was in the context of the applicant’s evidence that his ability to read documents in English was quite limited.
I also accept that the CSO signed the same form acknowledging that “the documents… were handed to and received by [the applicant]”. However, the CSO did not give evidence in these proceedings. Whilst it is apparent from the file note and other communications in evidence that the CSO may have believed that he had handed the full set of documents to the applicant, it is not clear on the documentary evidence how conscious the CSO would have been of the exact nature of the documents that he was handing to the applicant nor how carefully the attachments that had been printed from the Department’s email had been checked. It is entirely plausible that the CSO, or those who printed and/or handed the documents to the CSO, made some mistake(s). The potential for this to have occurred is illustrated by the two subsequent errors made by the correctional facility in interpreting the Department’s instructions regarding these documents.
The applicant’s account of what happened is supported by the affidavit of his then lawyer, Kate Bones, dated 22 December 2022. It is also supported by Ms Bones’ correspondence with the Department from October 2022 challenging the validity of the notification on 5 August 2022. That correspondence is summarised above. It included Ms Bones’ letter dated 11 October 2022, in which she conveyed her instructions that the applicant had been handed an incomplete set of documents that was out of order and had been told that it was “a copy of his history which had come from the court”. This was reflected in the documents Ms Bones says were provided to Legal Aid by the applicant at Annexure KB3 of her affidavit, which begin with the conviction and sentence documents and are then followed by the Notice of Cancellation. Ms Bones’ evidence was not the subject of any evidentiary challenge. Ms Bones was not required for cross examination.
It is possible, as the Minister submitted, that the applicant made a mistake and that the full documentation that the Department sought to have conveyed to him was conveyed, in order, and without any misleading supplementation by the CSO on 5 August 2022. However, having regard to the foregoing, I am prepared to accept the applicant’s account of what happened on the balance of probabilities. In particular, I accept that the CSO handed the applicant two bundles of documents on 5 August 2022, namely:
(a)the Immigration Detention Notice Package; and
(b)the conviction and sentence documents, followed by the Notice of Cancellation.
I therefore accept that the applicant was not handed on 5 August 2022 the forms contained within the “Mandatory Cancellation Notification Package”, as it was termed in the Department’s email dated 12 October 2022.
I also accept that in relation to the first bundle of documents (the Immigration Detention Notice Package), the CSO told the applicant it came from the Department. I accept that the CSO told the applicant that the second bundle, containing the Notice of Cancellation underneath the conviction and sentence documents, “was [his] history that came from the Court”.
EFFECTIVENESS OF THE 5 AUGUST 2022 COMMUNICATION
The applicant contended that the communication of the Notice of Cancellation and accompanying documents on 5 August 2022 was so fundamentally and objectively misleading that it was incapable of meeting the requirements of s 501CA(3) of the Act. The applicant contended that he was only effectively notified for the purposes of that section on 9 November 2022. He therefore contended that the representations that he had made were made within time.
The applicant relied upon the case of Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386 (Wang). In Wang, the question was whether the applicant had applied to the Court within 28 days of notification of the Immigration Review Tribunal (IRT)’s decision for the purposes of the then applicable s 478 of the Act. The notification of decision that had been sent by post had been incorrectly addressed. The applicant was subsequently given a copy of the decision by an officer of the IRT, who incorrectly informed him that his right to appeal had expired. Justice Merkel rejected that the doctrine of estoppel could confer any jurisdiction or power on a Court or public authority which it did not otherwise have (at 392). However, in considering when the applicant had been “notified of the decision” for the purposes of s 478 of the Act, his Honour reasoned (at 393-396):
The sole, or at the least the primary, statutory purpose of “notification” by the IRT of the decision, whether under s 368 or otherwise, is to enable the person notified of the decision to consider the decision, and if so advised, apply to review it within 28 days of the notification…
The literal construction of s.478, which is contended for by the Minister, would produce precisely the opposite result to that intended by the legislature. Reverting to Kafka's door-keeper - the door to the Law would be and would remain shut to the very person for whom it is to provide access to the Law…
There is an alternative construction open. It is that a notification, for the purposes of s.478, must be a notification of the decision which does not or is not calculated to frustrate or negate the entitlement of the person notified of the decision to apply to the Court for its review…
The construction of s.478 must be based on its content, the context in which it appears and its role in the overall scheme for statutory review of IRT and RRT decisions. Many of those decisions may have fundamental consequences for the life and future well being of the individuals concerned. In such circumstances there is particular force in the comment in Bennion on Statutory Interpretation (2nd ed, 1992), p 725 -
“A construction will not be allowed which would enable persons charged with a statutory power or function to act in such a way as to truncate or otherwise modify what the legislature intended.”
The real point being made is that where a Judge concludes that the legislature could not have intended that a statute could operate in a manner which defeats its manifest object or purpose, then an alternative interpretation must be preferred. There is a substantial body of authority that supports that approach…
The application of these principles and authorities in the present case results in it being legitimate and necessary to imply a condition in respect of a notification by the IRT, for the purposes of s 478. The notification must not be carried out in a manner which frustrates or negates the entitlement of the person notified to lodge an application for review of the decision within 28-days of the notification. Another way of putting the implication is that, as the sole or primary statutory function of a notification for the purposes of s.478 is the commencement of the 28-day period for review, it is an implied condition of the valid exercise of the power of notification that it not be exercised in a manner which frustrates or negates that function.
The applicant submitted that an analogous statutory purpose has been recognised in relation to s 501CA(3) of the Act. In this regard, the applicant placed reliance upon what was said in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; (2020) 281 FCR 578 (Stewart) at [50] per Rares, Anastassiou and Stewart JJ:
42.… analysis of the statutory scheme demonstrates the importance of the person’s ability under s 501CA(4) to have the cancellation reconsidered by the Minister. Absent such reconsideration there is no opportunity in the statutory scheme for “another reason” to revoke the cancellation to be considered. It cannot have been intended by the Parliament that that could be lightly taken away. Requiring the person to act promptly in making their representations for revocation is readily understandable, but to leave them powerless, because of their status as a prisoner, to ensure that those representations are actually received by the Minister within a particular time period is an unreasonable result which the text of the provisions does not on the face of it require. That text should therefore not be construed so as to require that result…
50.Here, ss 501CA(3)(b) and 501CA(4)(a) and reg 2.52 are concerned with affording a person who is currently in prison a real opportunity, within a specified period, to make representations to the Minister as to why the cancellation should be revoked. The statutory context contemplated and intended that the prisoner would have a limited capacity to communicate with the Minister. That was because of the effect of the deprivation of the person’s liberty and consequent limitations on their ability to arrange for, or ensure, delivery of any representations that they might make. Rather, the legislative expressions “makes” and “made” in s 501CA and reg 2.52 focus on the act of the prisoner, not the position of the Minister as the intended recipient of the representations. It can readily be inferred that, in such a context, the statutory language contemplated and intended that the prisoner only do all that was reasonably in their power to “make” the representations within the prescribed period of 28 days after being given the notice of revocation.
Paragraph 50 of Stewart was cited with apparent approval in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173; (2021) 288 FCR 158 (EPL20) at [35] per Yates, Griffiths and Moshinsky JJ. A submission that Stewart was “plainly wrong” was rejected at [39]-[41].
The applicant also relied upon Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 63; (2000) 60 ALD 482 (Dranichnikov) per Kiefel J (as her Honour was). At [29]-[31], her Honour stated:
29.Representations or advices as to time limits, or an applicant’s right to apply, may however, affect the operation of s.478, or more particularly, in answer to the question whether an applicant has been “notified of the decision” for the purposes of s.478. The purpose of the section is to impose a limit upon the time for application by having time run from 28 days of notification. In Wang v Minister for Immigration and Multicultural Affairs (393-395), Merkel J had regard to the purpose of the section and concluded that, whilst there was no obligation on the Tribunal to notify of rights to review, or time limits with respect to them, a notification of the decision by the Tribunal, which is comprehended by the Act for the purposes of s.478, which includes and is accompanied by an untrue statement about review rights, substantially frustrates or negates the function of notification (393). An alternative construction of s.478 in its statutory context, and having regard to its role, is that a notification, for the purposes of that section, must be a notification of the decision which does not frustrate or negate the entitlement of the person notified to apply to the Court (394).
30.In this case a question arises because the Tribunal advised the applicant, in its letter of 12 August 1998, that if he wished to appeal to the Federal Court, he must apply “within thirty-five (35) days after the date of this letter”. The advice was incorrect. Section 478 refers to time running from notification… The effect of the advices here was, potentially, to mislead the applicant as to the time available for applying for review of the Tribunal decision, thereby frustrating the intent of s.478. It follows, in my view, that there was no notification on 14 August 1998.
31.The applicant’s case was that he could not be taken to be notified until 21 January 1999, when it was first made plain to him that the Tribunal could not entertain his second application. In that event, the application for substantive review was lodged in time. The submission does not address the advices communicated on 14 August 1998. They could not in fact be said to have misled the applicant who, it seems to me, had no intention of applying to the Court whilst he believed he could pursue an alternative course for merits review. That would not seem to be a relevant consideration. The construction referred to above has the result that if the recipient might be misled it cannot be said that there was “notification” for the purposes of the section. It proceeds upon the basis that there might otherwise be injustice, and does not seem applicable to a situation where it would not have mattered what time limit was advised. Since certainty requires that there be one construction of a statutory provision, an applicant might only be held to be debarred from relief on some other basis when the notification was inoperative. That possibility was not the subject of submissions before me. In these circumstances, it seems necessary for me to deal with the matter on the basis that there was no notification, because of the potential the advices had to mislead, and then to enquire when that was removed, so that proper notification could be said to have been effected. When the applicant received the Tribunal’s advices of 21 January 1999, he would have been in no doubt that the only course of action which had been open to him was the application to the Court of which the letter of 12 August 1998 spoke. This accords with his submissions. It would follow that the application for review (of the substantive application) was within time. The objection to competency is overruled.
The applicant submitted, by reference to Dranichnikov, that the question of whether communication of the notice is relevantly misleading is an objective one. Support for this position may also be found in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; (2021) 271 CLR 112 (EFX17) at [22]-[31] per Kiefel CJ, Gageler. Keane, Edelman and Steward JJ. There, it was found (footnotes omitted):
23.… The verbs "give" and "invite" connote only the performance of an act rather than the consequences of that performance such as the recipient's capacity to comprehend the content of the English notice given or the English invitation made…
25.When "giving" and "inviting" bear their ordinary meanings – respectively, of delivering and of requesting formally – with the implication that the delivery and request will be made in English, then it follows naturally that the expression "in the way that the Minister considers appropriate in the circumstances" is only concerned with the method of delivery and request rather than the content (30). As senior counsel for the respondent properly accepted, a requirement that the Minister consider the capacity of a person to understand the written notice or invitation would require more than physical delivery.
26.The statutory context, including other provisions of the Migration Act, reinforces the conclusions that in s 501CA(3) the verbs "give" and "invite" bear their ordinary meaning and that the expression "the way that the Minister considers appropriate in the circumstances" concerns only the method of delivery or invitation rather than the substantive content…
28. The approach of the majority of the Full Court was not limited to an implication that the Minister ensure, as far as is reasonably practicable, that the recipient understand the content of the written notice, the particulars, and the invitation. As explained above, the Full Court reached its conclusions about the respondent's lack of understanding by considering matters subsequent to the Minister's decision and matters of which the Minister might not have been aware. But even to draw a more limited implication from s 501CA(3) in the same terms as the express provisions above would go beyond attributing legal meaning to the statutory text (31). It would also require consideration of the extent of the capacity of a recipient to understand material provided, identification of how limitations could be overcome, and the taking of steps to do so. The administrative difficulties that this would introduce would be in tension with the goal expressed in the Second Reading Speech of the Bill that introduced s 501CA(3) that the "measures proposed will ensure that the government can move quickly to take action against noncitizens who pose a risk to the Australian community" (32)…
31.For these reasons, the majority of the Full Court erred in reasoning that the capacity of a person to understand the written notice, particulars, or invitation described in s 501CA(3) was relevant to whether the written notice and particulars had been given or whether the invitation to make representations had been made…
In EFX17, the decision of the Full Court was nonetheless upheld because the invitation to make representations did not provide a way of ascertaining the period within which the representations were required to be made (at [2] and [20]-[21]).
It is clear from the above that the subjective ability of the applicant to understand the notice is not the focus of the inquiry. Rather, the inquiry is to be undertaken from the perspective of the communication of the notification.
The Minister submitted that the requisite content for the purposes of s 501CA(3) was communicated through the Notice of Cancellation. This was so even if it were accepted, as I have accepted above, that the full “Mandatory Cancellation Notification Package” was not provided to the applicant.
There is force to the Minister’s submissions. What was “mandatory” in a jurisdictional sense depended upon the legislative provisions. Section 501CA(3) of the Act required that the Minister give the applicant “in the way that the Minister consider[ed] appropriate in the circumstances”, (a) a written notice setting out the cancellation decision, and (b) particulars of the relevant information. It also required that the applicant be invited to make representations to the Minister about revocation of the cancellation decision “within the period and in the manner ascertained in accordance with the regulations”.
As was submitted by the Minister, the written Notice of Cancellation, on the face of it, complied with each of these requirements. The notice set out the original decision, being that the applicant’s visa had been cancelled pursuant to s 501(3A) of the Act. It also set out the particulars of the relevant information, being information that formed the reasons, or part of the reasons, for making the cancellation decision. This was by reference to the details of the applicant’s criminal record that were relied upon as well as the applicant’s service, at the relevant time, of a sentence of imprisonment. The text of the letter invited the applicant to make representations to the Minister and provided information about how to do so. The timeframe for doing so was correctly set out in the text of the Notice of Cancellation.
I accept the Minister’s submission that although the Notice of Cancellation “recommended” that the “Request for revocation” form be used, it did not suggest that this particular form or any other specific form or document needed to be used in order for the representations to be validly made. In EPL20, the Full Court rejected an argument that the notification under s 501CA(3) was defective simply because enclosures to the “Notice of Visa Cancellation Documents” were allegedly not served with the notice (at [65]-[66] per Yates, Griffiths and Moshinsky JJ). Therefore, I would not have accepted that the requirements of s 501CA(3) were not met, simply because the forms referenced in the Notice of Cancellation (contained within the “Mandatory Cancellation Notification Package”) had not been provided.
However, the applicant’s complaint goes further than this. It includes what I have found above, namely, what the CSO communicated to the applicant about the nature of the documents and their presentation in a form that further served to obscure their identity.
The Minister submitted that the invitation to make representations for the purposes of s 501CA(3)(b) did not include any oral supplementation by the CSO. In this regard, the Minister submitted that s 501CA(3)(b) contemplates such an invitation being given in writing. The Minister submitted that this was supported by statutory features such as the 28 days in r 2.52 of the Regulations running from the time of the person being given the notice. The Minister also referred to the deeming provisions regarding receipt of documents in r 2.55. The Minister further relied upon the contemplation in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91; (2021) 285 FCR 43 at [80] (per Banks-Smith and Jackson JJ) that the time for the communication under s 501CA(3) of the Act occur at the “soonest time that it is practicable” which “is by definition a single time”.
The Minister did not, however, cite any direct authority for the proposition that the invitation under s 501CA(3)(b) was required to occur exclusively in writing. Unlike s 501CA(3)(a)(i), s 501CA(3)(b) did not specify the form in which the invitation to make representations was to be given. I accept the applicant’s submission that if this had been intended, then it would have been a simple matter to have included language to this effect in a similar manner to what was included in s 501CA(3)(a)(i). In any event, the applicant’s case was that the conduct of the CSO frustrated or negated the objects of s 501CA(3) of the Act in the manner considered in Wang and Dranichnikov. The applicant’s primary case, therefore, did not depend upon whether or not the invitation under s 501CA(3)(b) of the Act could encompass oral statements.
Two statutory objects have been recognised in relation to s 501CA(3). The first, recognised in Stewart at [50] (and more recently EPL20 at [35]) is to provide “a person who is currently in prison a real opportunity, within a specified period, to make representations to the Minister as to why the cancellation should be revoked”. The second, recognised in EFX17, is efficiency related: to “ensure that the government can move quickly to take action against noncitizens who pose a risk to the Australian community” (at [28]).
The Minister submitted that the applicant’s case was inconsistent with the latter object. The Minister suggested that it would lead to real uncertainty if oral supplementation were allowed to affect the discharge of the Minister’s function under s 501CA(3). However, I do not accept that recognition of the principles considered in Wang and Dranichnikov introduce the level of uncertainty contemplated in EFX17. The comparatively limited number of cases in which consideration of the type of issue arising in this case has occurred, and the absence of any case directly on point, tells somewhat against any “floodgates” or impracticality concerns that may be held by the Minister. In any event, where the elected method of discharging the function under s 501CA(3) is “by hand”, its discharge is always potentially going to be a matter for evidence. Such evidence may include written acknowledgments, as in this case. It may also include file notes of what has been said to inmates in the discharge of the function, as was evidenced in EFX17 at [8]. Had contemporaneous file notes been kept of what was said by the CSO to the applicant in the present case when handing him the documents, and had those file notes been inconsistent with the applicant’s account, then the outcome in this matter may well have been different. I do not accept that this introduces the level of uncertainty contemplated in EFX17, where the contended obligation upon the Minister was one of assessing and addressing the subjective ability of individual recipients to understand the material provided.
In contrast, the applicant’s focus in the present case was upon the objectively misleading nature of the communication that attended the discharge of the function under s 501CA(3). It was submitted that this communication, which actively misled the applicant regarding the content of what he was handed, had the effect of frustrating or negating the statutory purpose of providing applicants with an opportunity to seek revocation.
The Minister submitted that any misleading communication in this regard was not made by or on behalf of the Minister. The Minister observed that the CSO was not a Departmental employee. The Minister submitted that it was not apparent how the CSO could have been exercising the powers and obligations reposed in the Minister under s 501CA(3) of the Act. The Minister submitted that the CSO was “simply the final step in the physical giving of the Minister’s written notice and invitation” to the applicant and nothing more. The Minister submitted that the CSO’s statements and actions could not be attributed to the Minister any more than the statements or actions of a postal services worker or any other third party.
There is some force to the Minister’s submissions. However, I consider that the answer to them lies in the particular role played by the CSO and other such officers, at the Minister’s behest, in the particular context in which the material was given. As was observed in Stewart at [50], the opportunity under s 501CA(4) is contemplated as occurring when the recipient of the communication under s 501CA(3) is in prison with limited capacity to communicate with the Minister. In the present case, the role given to the CSO through the prison, at the request of the Department, went beyond the physical act of handing the applicant the documents. The CSO, who may be expected to have been in some position of authority in respect of the applicant prisoner, was also tasked with having the applicant complete and sign an acknowledgement page confirming that he had received the material in question. This, at the Department’s request, appears to have contemplated at least some level of oral communication or explanation on the part of the CSO regarding the nature of the material for which the applicant was asked to acknowledge receipt. The CSO, through the prison, had therefore been delegated some function by the Department in communicating the nature of the documents to the applicant. That role, in the particular context in which it was carried out, went beyond that of a mere courier charged with physically handing documents to an applicant.
The Minister accepted at hearing, sensibly, that if the CSO had handed the applicant the documents and told him something that was completely misleading as to their nature (such as that they were for another inmate, or something the CSO wanted the applicant to put in the bin for him) then the communication may not have been effective for the purposes of s 501CA(3) of the Act. Whilst those examples may be more extreme, they are logical extensions of what the applicant is contending occurred in the present case. The applicant contends that although he was handed the documents, he was told that they were something else. Both subjectively and objectively, he contends that this was so fundamentally misleading that it frustrated or negated the effect of their communication.
For the above reasons, I accept the applicant’s contention that the purported notice communicated on 5 August 2022 was carried out in a manner that frustrated or negated the entitlement to make representations seeking revocation as intended by s 501CA(4) of the Act. Following Wang and Dranichnikov, I therefore accept the applicant’s contention that the purported notice given to him on 5 August 2022 did not comply with s 501CA(3) of the Act.
WERE THE REPRESENTATIONS MADE WITHIN TIME?
As set out above, the applicant’s representative suggested in an email dated 3 November 2022 that the “complete notification documents” had been given to the applicant through email to Legal Aid on 12 October 2022. In response, the applicant made representations seeking revocation on 3 November 2022. Those representations appear to have complied with the requirements in r 2.52 of the Regulations.
On 9 November 2022, the material was further provided to the applicant by hand by another Corrective Services Officer. The applicant’s representative responded by attaching a further revocation request. A page appears to be missing in the Court Book, which contained a statement of the reasons supporting the representations. It is unclear whether or not this is because it was missing from the email attachment. Regardless, I accept that the communication, when read together with and as encompassing the earlier representations, was capable of meeting r 2.52 of the Regulations.
The applicant’s application contended that the 9 November 2022 notification was the effective one. Regardless of whether effective notification occurred on 9 November 2022 or 12 October 2022, I accept that the applicant made representations within time. The Minister did not contend that I should find otherwise, in the event that I found the 5 August 2022 notification to have been ineffective.
CONCLUSION
For the above reasons, the application before this Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 8 August 2023
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