EFX17 v Minister for Immigration - [2018] FCCA 3179

FEDERAL CIRCUIT COURT OF AUSTRALIA

EFX17 v MINISTER FOR IMMIGRATION

[2018] FCCA 3179

Catchwords:
MIGRATION – Mandatory cancellation of visa pursuant to s. 501(3A) of Migration Act – subsequent requirement to “give” s. 501CA(3)(a) notice - whether giving of s. 501CA(3)(a) original visa cancellation notice is a “decision” amenable to review – where Applicant alleged that the giving of notice was invalid – whether notice deemed to have been received - method of giving appropriate notice – whether personal characteristics of recipient of notice ought to be taken into account as part of process of deciding what is appropriate – where Minister refused request to re-issue notice – where Application for review dismissed.

Legislation:

Electronic Transactions Act 1999 (Cth), ss.9, 14, 14A, 14B

Migration Act 1958 (Cth), ss.473(g), 474(3)(g), 476, 494A, 494B, 494C, 494D, 497, 501(3A), 501(6), 501CA(3)(a)

Migration Regulations 1994 (Cth), rr.2.55(3)(d), 2.55(3A)(d), 2.55(3A)(f)

Cases cited:

Aciek v Minister for Immigration [2017] FCCA 3237

Butt v Minister for Immigration and Border Protection [2014] FCA 1354

Kumar v Minister for Immigration (2008) 221 FLR 361

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300

Applicant:

EFX17

Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number:

BRG 942 of 2017

Judgment of:

Judge Egan

Hearing date:

24 October 2018

Date of Last Submission:

31 October 2018

Delivered at:

Brisbane

Delivered on:

7 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr D Fuller

Solicitors for the Applicant:

Prisoner’s Legal Service

Counsel for the Respondents:

Ms A Wheatley

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Application for review is dismissed.
The Applicant pay the Respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 942 of 2017

EFX17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REASONS FOR JUDGMENT

Introduction

On 3 January 2017, a delegate of the respondent Minister cancelled the Applicant’s protection visa pursuant to the provisions of s. 501(3A) of the Migration Act 1958 (Cth) (“the Act”).
By an Amended Application for Review filed pursuant to s. 476 of the Act on 4 December 2017, the Applicant sought judicial review in relation to “decisions” made under s. 501CA(3) of the Act.
The relief sought by the Applicant is as follows:
a)A declaration that the delivery of material and information to the Applicant on 4 January 2017 (purported section 501CA(3) notice) did not comply with section 501CA(3) of the Migration Act 1958 (Cth) (Migration Act).
b)A writ of mandamus requiring the Minister or his delegate to take actions required by section 501CA(3) of the Migration Act in accordance with law.
The Applicant contends that the purported giving of a s. 501CA(3) notice by the Minister to the Applicant on 4 January 2017 was invalid.
It was asserted by the Applicant that the Minister has never given to the Applicant a valid notice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 3179
Decision Date: 7 November 2018

CaseChat Overview and Summary

The applicant, EFX17, sought judicial review of a decision by the Minister for Immigration concerning the mandatory cancellation of their visa under section 501(3A) of the *Migration Act 1958* (Cth). The core of the dispute revolved around the subsequent requirement for the Minister to "give" a notice under section 501CA(3)(a) of the Act, and whether the act of giving this notice constituted a "decision" that was amenable to review. The applicant contended that the giving of this notice was invalid, and further argued that the notice was deemed to have been received. The matter was heard by Judge Egan in the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were: (1) whether the act of giving the original visa cancellation notice under section 501CA(3)(a) was a reviewable "decision"; (2) whether the notice was validly given, considering the method of giving notice and whether the personal characteristics of the recipient should be taken into account in determining the appropriate method; and (3) whether the Minister's refusal to re-issue the notice was lawful.

Judge Egan reasoned that the giving of a notice under section 501CA(3)(a) is a procedural step mandated by the Act, not a substantive "decision" that determines the rights or obligations of the visa holder in a way that is amenable to merits review. The court found that the Minister had complied with the requirements for giving notice, and that the method employed was appropriate. The personal characteristics of the recipient were not a relevant consideration for the *manner* in which the notice was to be given, but rather for the content of the notice itself. Consequently, the application for review was dismissed.

Orders