EFX17 v Minister for Immigration
[2018] FCCA 3179
•7 November 2018
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 required to be so given pursuant to the provisions of s. 501CA(3) of the Act, and that, therefore, the time for the making of representations to the Minister, pursuant to s. 501CA(4) of the Act, about why the Minister should revoke the cancellation decision, has not yet crystallised.
Factual Background
The Applicant is an Afghan citizen who arrived in Australia by boat in October 2009. He was granted a Class XA Subclass 866 Protection Visa (“the visa”) on 16 December 2009.
The Applicant’s native language is Hazaragi, though he speaks broken English. His ability to read or write in English is limited. His communications with his lawyers have been via an interpreter. The Applicant has also been diagnosed as having suffered from a schizophrenic illness which was treated with regular anti-psychotic medication.
On 19 December 2016 the Applicant was convicted, upon a guilty plea, of committing acts intended to cause grievous bodily harm under s. 317 of the Criminal Code 1899 (Qld). He was sentenced to 7 years’ imprisonment. As at 3 and 4 January 2017, he was held in custody at the Arthur Gorrie Correctional Centre in Brisbane.
After the Applicant’s conviction, the following communications occurred between Queensland Correctional Service personnel and members of the Department of Immigration and Border Protection, through what appeared to be open lines of communication:
a)On 23 December 2016, one Nicole Bowdern, in her capacity as a Sentence Planning Advisor with Queensland Corrective Services, sent an email to QLD Prison Parole Liaison referring to the fact that the Applicant was born in Afghanistan and inquiring as to whether he was of interest to the Department. A copy of the Applicant’s Sentence Calculation Report relating to his relevant conviction was attached.[1]
b)On 29 December 2016, at 12:59pm, an email was sent from QLD Prison Parole Liaison to NCCC (“National Character Consideration Centre”) at the Department of Immigration and Border Protection. The email urgently asked the NCCC office to advise whether the Applicant was liable “for consideration for cancellation in terms of the S501 Legislation.”[2]
c)On 29 December 2016, at 2:41pm, an email was sent from the office of NCCC to Ms Bowdern, and to QLD Prison Parole Liaison, as well as to one Ms Ewens, advising them that the Applicant was of interest to the Department “for mandatory visa cancellation”, and asking Ms Ewens to act with some urgency.[3]
[1] See p.4 of Annexure ACJ-7 to affidavit of Alexander James filed on behalf of Respondent on 17
October 2018
[2] See p.3 of Annexure ACJ-7 to James affidavit
[3] See p.3 of Annexure 2ACJ-7 to James affidavit.
On 3 January 2017, a delegate of the Minister decided to cancel the Applicant’s protection visa pursuant to the mandatory cancellation provisions of s. 501(3A) of the Act (“original cancellation decision”). Being sentenced for a term of imprisonment greater than 12 months, the Minister was satisfied that the Applicant had failed the character test as provided for in s. 501(6) of the Act. Counsel for the Applicant does not take issue with the validity of the cancellation decision.
Section 501 of the Act provides as follows:
Refusal or cancellation of visa on character grounds
Decision of Minister or delegate--natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
Decision of Minister--natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
(3B) Subsection (3A) does not limit subsections (2) and (3).
(4) The power under subsection (3) may only be exercised by the Minister personally.
(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; or
(b) the Minister reasonably suspects:
(i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii) that the group, organisation or person has been or is involved in criminal conduct; or
(ba) the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:
(i) an offence under one or more of sections 233A to 234A (people smuggling);
(ii) an offence of trafficking in persons;
(iii) the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or
(f) the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
(i) the crime of genocide;
(ii) a crime against humanity;
(iii) a war crime;
(iv) a crime involving torture or slavery;
(v) a crime that is otherwise of serious international concern; or
(g) the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ); or
(h) an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.
Otherwise, the person passes the character test
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
Concurrent sentences
(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
Periodic detention
(8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person's term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.
Residential schemes or programs
(9) For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:
(a) a residential drug rehabilitation scheme; or
(b) a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.
Pardons etc.
(10) For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:
(a) the conviction concerned has been quashed or otherwise nullified; or
(b) both:
(i) the person has been pardoned in relation to the conviction concerned; and
(ii) the effect of that pardon is that the person is taken never to have been convicted of the offence.
Conduct amounting to harassment or molestation
(11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:
(a) it does not involve violence, or threatened violence, to the person; or
(b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.
Definitions
(12) In this section:
"court" includes a court martial or similar military tribunal.
"imprisonment" includes any form of punitive detention in a facility or institution.
"sentence" includes any form of determination of the punishment for an offence.
Note 1: Visa is defined by section 5 and includes, but is not limited to, a protection visa.
Note 2: For notification of decisions under subsection (1) or (2), see section 501G.
Note 3: For notification of decisions under subsection (3), see section 501C.
After the making of the cancellation decision, the same delegate to the Minister sent an email, at 2:51pm on 3 January 2017, to “[email protected]” entitled “CANCELLATION OF VISA” [4]
The email was copied to “[email protected]”. The subject heading of the email was “QLD: Notification of s501 visa cancellation. That email, it is to be noted, was not directed to the Applicant.
[4] See Court Book (“CB”) p.30
After naming the Applicant, and recording his date of birth, the email provided as follows:
Please note that included with the formal notice is an acknowledgement of receipt – see page 6. Please have [EFX17] 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 [EFX17] received the cancellation notification with the attached documents.
A delegate of the Minister for Immigration and Border Protection has cancelled the visa held by [EFX17] pursuant to s.501 of the Migration Act on 3 January 2017.
Please provide the attached cancellation documentation to [EFX17]. It is important that the full documentation is provided to [EFX17] 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 [EFX17] following their release from criminal custody including immigration detention pending their removal from Australia, if necessary.
Thank you for your assistance
Your sincerely
Position Number: 00001385
Mandatory Cancellation and Character Assessment Team
National Character Consideration Centre
Community Protection Division
Department of Immigration and Border Protection
Telephone: 1300 722 061
Fax: (03) 9235 3626
Email: [email protected]
Please note:I am satisfied that the disclosure of information is reasonably necessary for enforcement related activities and is permitted under APP6.2e of the Privacy Act 1988.
There was attached to the email last referred to a letter dated 3 January 2017.[5] That letter was the written cancellation notice sent by the delegate pursuant to the mandatory provisions of s.501CA(3) of the Act. Counsel for the Applicant conceded that the notice recorded, in English, such information as was required to be included for the purposes of the giving of a s.501CA(3) notice, but, as set out later, submitted that the purported giving of the notice, in the circumstances, was invalid.
[5] See CB p.32-37 inclusive
It was conceded by Counsel on behalf of the Applicant that on 4 January 2017, the Applicant was handed a copy of the email of 3 January 2017, as well as the written s.501CA(3) notice, also dated 3 January 2017. It was also conceded by Counsel for the Applicant that the Applicant had acknowledged receipt of such documents by signing an acknowledgement of receipt form on 4 January 2017.[6]
[6] See p. 26 of CB
The Applicant filed his Original Application for Judicial Review on 19 September 2017.
The Applicant filed his Amended Application for Judicial Review on 4 December 2017.
Preliminary Issues
Respondent’s Objection to admissibility of Affidavit of Helen Blaber filed on 21 September 2017
The Respondent objects to the admissibility of the affidavit of Ms Blaber on 2 grounds, namely:
a)The affidavit contains information already within the Court Book; and
b)The balance of the affidavit is irrelevant because it is submitted that it is only the documentation or events leading up to the sending of the s.501CA(3) notice which are relevant, and that anything relating to events after that time is irrelevant and inadmissible.
The Applicant concedes the first point.
The Applicant otherwise persists with the application to rely upon the affidavit on a number of grounds as set out in the Applicant’s reply submissions.
The Court is of the view that to the extent that the affidavit of Ms Blaber seeks to record the manner in which the Applicant received the relevant s. 501CA(3) notice, the Applicant’s acknowledgement of receipt of such notice, and what transpired directly as a result of such receipt, the affidavit is relevant and admissible. Such evidence forms part of the factual matrix which is relevant to a consideration of the acts said to constitute the giving and receipt of the relevant notice. That is particularly so in circumstances where each is an integral part of the process of the Minister being required to first give notice of the cancellation to the Applicant, and second, for the Minister to then invite the Applicant, pursuant to s 501CA(3)(b) of the Act, to make representations to the Minister as to why the original cancellation decision ought to be revoked. It is also relevant to the Applicant’s understanding and appreciation of the import of the contents of the notice.
Applicant’s Extension of Time Application pursuant to section 477 of Migration Act 1958 (Cth)
The Applicant submitted that his entitlement to make representations to the Minister about revocation of the original cancellation decision, and the time by which he needs to make any such representations, has not crystallised, because he has never been validly given written notice of the original cancellation decision as is required pursuant to section 501CA(3)(a) of the Act.
The Applicant submitted that the Minister had made two substantial errors in purporting to issue the s. 501CA(3)(a) notice, namely:
a)Failure to properly consider the Applicant’s circumstances; and
b)Impermissible delegation.
As to the failure to consider point, the Applicant has submitted that the Minister ought to have taken into account the particular circumstances of the Applicant when deciding the appropriate way in which to give a s. 501CA(3)(a) notice to him. Such circumstances were submitted as including the Applicant’s:
a)Literacy
b)Capacity to understand English
c)Mental capacity and health
d)Incarceration and the facilities available to him to seek relevant advice.
The Applicant submits that the failure on the part of the Minister to make inquiries as to the relevant circumstances of the Applicant constituted the “doing or refusing to do any other act or thing” within the meaning of that term as used in s. 474(3)(g) of the Act, and that it was therefore a “decision” amenable to judicial review.
The Applicant further submits that the Minister’s refusal, on 15 August 2017, to reissue the s.501CA(3)(a) notice after he had been requested to do so in writing,[7] constituted another decision which was “in relation to” the original cancellation decision so as to thereby render it amenable to judicial review.
[7] See CB pp 1 – 17 inclusive
The Application made pursuant to s. 476 of the Act was filed on 19 September 2017, which was within the 35 day time limit for the bringing of an Application for review after the 15 August 2017 “refusal decision” of the Minister. No extension of time was required, or sought, for the filing of the Application for review in respect of such decision.
The Applicant, however, seeks an extension of time for the filing of such Application in the event that the court took the view that the timing of the relevant migration decision was either 3 January 2017, when the email attaching the written notice was sent to the Arthur Gorrie Correctional Centre, or 4 January 2017, when the email and a hard copy of the original cancellation decision was handed by a correctional services officer to the Applicant.
The Applicant’s grounds for extension of time are set out in Annexure A to the Application. The factual bases for such grounds are relevantly footnoted to appropriate parts of the affidavit of Ms Blaber.
It is in the interests of justice that the Application for extension of time be granted. The Applicant submits that the circumstances in which the written notice was given to the Applicant were such that there is doubt as to whether the Applicant fully understood the contents of the notice when it was given to him. To refuse the Application for extension of time would prevent the Applicant from agitating not only that point, but also a novel and important question of law relating to the appropriate method or manner of the giving of s. 501CA(3)(a) notices.
Respondent’s Application for Summary Dismissal of Application for Review (not a “migration decision”)
The Respondent contends that the sending of the s 501CA(3)(a) written notice was not the doing of any act or thing, or conduct preparatory to the making of a decision, so as to constitute it a decision amenable to review on the proper construction of s. 473(3)(g) or (h) of the Act. In support of that submission, the Respondent cited the cases of Kumar v Minister for Immigration (2008) 221 FLR 361 at [25] and Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300 at [57].
Kumar and Shao were both cases involving the automatic cancellation of a Student Visa. As was said in Shao at [57]:
The whole scheme of this subdivision of the Migration Act is to provide for a statutory form of cancellation of visas which does not require any administrative decision. The scheme is designed to avoid the requirement for any administrative decision and thereby any review of that decision.
The present case did involve the making of an administrative decision in two respects. First, s. 501CA(3)(a) imposed a mandatory requirement upon the Minister to give to the Applicant written notice of the original cancellation decision in a way which the Minister considered “appropriate” – namely by any of the means set out in s. 494A or s. 494B of the Act. The Minister therefore had to decide what was “appropriate” in the circumstances. Such decision was not automatic, and was open to review on any number of grounds.
Second, the actual giving of the notice in the manner considered appropriate was the doing of an act within the meaning of s. 474(3)(g) of the Act, and was, as such, a reviewable decision. Further, both decisions are intertwined, and are collectively reviewable in circumstances such as the present, where essential elements of each are required to be looked at to determine whether or not any procedural unfairness occurred.
There is no merit to the Respondent’s assertion that neither decision was a reviewable migration decision.
Applicant’s Grounds for Review
The Applicant filed an Amended Application on 4 December 2017. The grounds were set out in Annexure B thereto under the following general headings:
a)Error as to scope of power – “the circumstances”
b)Error as to scope of power – “particulars and invite”
c)Failure to have regard to relevant considerations
d)Impermissible delegation
e)Error as to scope of power – “consequences for the second decision”
The Applicant raised a further ground which was argued at length, namely whether the provisions of s. 9 of the Electronic Transactions Act 1999 (Cth) prohibited the giving of a s. 501CA(3)(a) notice by email to the Applicant in circumstances where the Applicant had not consented to such notice being given to him in that manner.
As to each of the Applicant’s contentions:
Error as to scope of power – “the circumstances”
a)The Applicant asserts that the written notice can only be given in a way which is appropriate if the particular circumstances of the recipient of the notice are taken into account, namely their literacy, capacity to understand English, mental capacity and health, and, if the intended recipient was incarcerated at the relevant time, the circumstances of such incarceration. The Applicant submits that in this case, there was no evidence that the Minister gave any consideration as to the appropriate way in which to give the written notice by reference to the circumstances of the Applicant.
b)Because the decision to send the written notice by email to a correctional service officer for its later hand delivery to the Applicant was actually made, it ought to be inferred that consideration was given as to what was an appropriate way – as opposed to what might have been the most appropriate way – in which the written notice ought to be given to the Applicant in his capacity as a confined prisoner. That the notice was in fact received by the Applicant gives credence to the inference that not only was consideration given by the delegate as to the appropriate method of the giving of the notice, but also consideration by the delegate as to the prospects of it actually being received by such method.
c)S. 501CA(3)(a) ought properly be construed to be confined to the appropriate way in which the written notice is to be given to the Applicant in the circumstances in which the Applicant is placed at the likely time of the giving and receipt of the notice. The words “appropriate in the circumstances” ought to be directed to a consideration as to what is the most appropriate way of giving or delivering the notice. The wider construction of the words “appropriate in the circumstances”, as countenancing the requirement for the decision maker to consider all of the circumstances of a person such as the Applicant, ought not to be preferred.
d)It is the giving of the notice to which the section is primarily directed. Had Parliament intended that the characteristics and individual circumstances of non-citizens were on each occasion to be taken into account before a notice could be given to them, one would have thought that Parliament would have provided in the Act, by clear language, that as part of the process of the giving of notice, a whole host of arrangements would have to be made by the Minister (on each and every occasion of the giving of a notice), relevant to the intended recipient, to first ensure that the particular recipient understood not only the content of the notice, but also the consequences of their receipt of the notice. The practical difficulties associated with not only identifying the particular needs of each intended recipient (however idiosyncratic or practically difficult they may be), but also making provision for such needs, would impose unreasonable burdens upon decision makers, quite apart from a consideration of the cost and administrative burdens that would be imposed upon the machinery of government.
e)Further, the provisions of sections 494A, 494B and 494C, together with Rule 2.55 of the Migration Regulations 1994 (Cth) (“Migration Regulations”), deal with the manner in which a Minister is required or permitted to give a document to a person. Those sections are as follows:
Section 494A
Giving documents by Minister where no requirement to do so by section 494B method
(1) 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).
Note: Section 494D deals with giving documents to a person's authorised recipient.
(2) If a person is a minor, the Minister may give a document to an individual who is at least 18 years of age if the Minister reasonably believes that:
(a) the individual has day-to-day care and responsibility for the minor; or
(b) the individual works in or for an organisation that has day-to-day care and responsibility for the minor and the individual's duties, whether alone or jointly with another person, involve care and responsibility for the minor.
(3) However, subsection (2) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
(4) If the Minister gives a document to an individual, as mentioned in subsection (2), the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.
Section 494B
Methods by which Minister gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient ); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
(1A) If a person is a minor, the Minister may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor ):
(a) who is at least 18 years of age; and
(b) who the Minister reasonably believes:
(i) has day-to-day care and responsibility for the minor; or
(ii) works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note: If the Minister gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 494C in respect of that method.
(1B) However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
Giving by hand
(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.
Transmission by fax, email or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e) if the recipient is a minor--the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
When the Minister hands a document by way of an authorised officer
(6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.
Documents given to a carer
(7) If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.
Section 494C
When a person is taken to have received a document from the Minister
(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
Giving by hand
(2) If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
Handing to a person at last residential or business address
(3) If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.
Dispatch by prepaid post or by other prepaid means
(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document; or
(b) in any other case--21 days after the date of the document.
Transmission by fax, email or other electronic means
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
Document not given effectively
(7) If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
Regulation 2.55
Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(1) This regulation applies to:
(a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and
(ab) the giving of a document under subsection 133E(2) of the Act relating to a decision to cancel a visa under subsection 133A(1) or 133C(1) of the Act; and
(b) the giving of a document under subsection 501G(3) of the Act relating to a decision to:
(i) cancel a visa under section 501, 501A, 501B, 501BA or 501F of the Act; or
(ii) not revoke a decision to cancel a visa under section 501CA of the Act; and
(c) the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.
(2) However, this regulation does not apply in relation to:
(a) a notice to which section 137J of the Act relates; or
(b) a person who is in immigration detention.
Note: See regulation 5.02.
(3) Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i) is at the person's last residential or business address known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person's last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) email; or
(iii) other electronic means;
to the last fax number, email address or other electronic address known to the Minister.
Note: Subregulation (3A) deals with giving documents mentioned in paragraphs (1)(a) and (c) to minors.
(3A) If the person is a minor, the Minister must give a document mentioned in paragraph (1)(a) or (c) in 1 of the following ways:
(a) by handing it to the minor personally;
(b) by handing it to another person who:
(i) is at the last residential or business address for the minor that is known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating and then dispatching the document:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the minor's last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) email; or
(iii) other electronic means;
to the minor's last fax number, email address or other electronic address known to the Minister;
(e) by dating and then dispatching the document:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to a carer of the minor at the last residential address, business address or post box address for the carer of the minor that is known to the Minister;
(f) by transmitting the document by:
(i) fax; or
(ii) email; or
(iii) other electronic means;
to a carer of the minor at the last fax number, email address or other electronic address for the carer of the minor that is known to the Minister.
(4) Subject to subregulation (4A), for a document mentioned in paragraph (1)(ab) or (b):
(a) if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in subregulation (3); and
(b) if the person has held the visa for at least 1 year when the document is to be given:
(i) Immigration must try to find the person; and
(ii) the Minister must give the document in one of the ways mentioned in subregulation (3).
Note: Subregulation (4A) deals with giving documents mentioned in paragraph (1)(b) to minors.
(4A) If the person is a minor:
(a) the Minister must give a document mentioned in paragraph (1)(ab) or (b) in 1 of the ways mentioned in subregulation (3A); and
(b) if the minor has held the visa for at least 1 year when the document is to be given, Immigration must try to find the minor.
(4B) If the Minister gives a document to a carer of the minor in accordance with this regulation, the Minister is taken to have given the document to the minor.
(4C) Nothing in subregulation (4B) prevents the Minister giving the minor a copy of the document.
(5) If the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person.
(6) If the Minister gives a document to a person by handing it to another person at a residential or business address, the person is taken to have received the document when it is handed to the other person.
(7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document; or
(b) in any other case--21 days after the date of the document.
(8) If the Minister gives a document to a person by transmitting it by fax, email or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.
(9) If:
(a) the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of the document;
the Minister is taken to have given the document to the person and the person is taken to have received the document:
(c) at the time specified by this regulation for that method; or
(d) if the person can show that he or she received the document at a later time--at that later time.
f)In Butt v Minister for Immigration and Border Protection [2014] FCA 1354 at [24] Mortimer J said:
By Reg 2.55(1)(a) it is apparent that the regulation applies to the giving of a document to a holder of a visa relating to the cancellation of a visa under the Migration Act. That is the situation in which the appellant was placed.
g)The giving of a written notice of cancellation clearly falls within the ambit of documents countenanced as being given to persons such as the Applicant in this case. As a matter of construction, the consideration as to what is appropriate in the circumstances as set out in the provision should be so construed as to be limited the appropriateness of the giving of notice.
h)There is no merit to this ground of objection.
Error as to scope of power – “particulars and invite”
i)The Applicant relies upon similar submissions in this ground as was submitted in respect of the previous ground.
j)For the same reasons, this ground is without merit.
Failure to have regard to relevant considerations
k)This ground repeats the arguments advanced in respect of the former two grounds.
l)Further, it cannot be said that no other rational or logical decision maker could not have made the same decision in respect of the way in which the cancellation notice was to be given. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
m)Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King157 that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
n)For the same reasons, this ground is without merit.
Impermissible delegation
o)It is common ground that the same delegate who made the decision that it was appropriate to email the original written cancellation notice to the Arthur Gorrie Correctional Centre, for its later hand delivery to the Applicant, was also the person who in fact caused the email and written cancellation notice attachment to be sent by email to the relevant correctional institution.
p)It is submitted on behalf of the Applicant that even if the person referred to in (a) hereof was a formal delegate of the Minister under s. 496(1) of the Act, the same cannot be said of the correctional services officer who handed the written cancellation notice to the Applicant. It is submitted that if the correctional services officer was not a s.496(1) delegate, such officer was not permitted to perform the function of giving the notice under s. 501CA(3)(a) of the Act.
q)It is without question that when the Minister’s delegate made the decision to email the written notice to the correctional officer, the delegate was under no illusion that a person other than a person in the employ of the Minister’s department, undelegated, would be tasked to deliver the written notice to the Applicant. Because it was the giving of the notice to the Applicant that was the primary task at hand, it must be inferred that the Minister’s delegate intended that the notice be given in that way, and that such way was considered by them to be appropriate in the circumstances. The fact that the Applicant was incarcerated in a prison at the relevant time was no doubt a relevant consideration which had been taken into account, in that regard, by the delegate.
r)There are innumerable circumstances which can be envisaged as requiring innovative and novel ways for the giving of a s. 501CA(3)(a) notice to an Applicant. For example, the physical location of an Applicant may be a determinative factor as to how the notice might be given. Circumstances may reasonably warrant, for example, the passing on of such a notice by a pilot in the Royal Flying Doctors’ Service to an intended recipient should they be alone and situated on a remote cattle property in central Australia. Other possible scenarios can readily be brought to mind. A commercial agent acting as a process server might also be engaged for the purpose of hand delivering the notice to the intended recipient.
s)Section 497 of the Act supports the proposition that administrative or clerical acts associated with the giving of notice are not required to be undertaken by either the Minister personally or by the Minister’s delegate. That section provides as follows:
MIGRATION ACT 1958 - SECT 497
Delegate not required to perform certain administrative tasks
(1) If the Minister delegates the power to grant or refuse to grant visas, the delegation does not require the delegate personally to perform any task in connection with the grant or refusal, except the taking of a decision in each case whether or not a visa should be granted.
(2) 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.
(3) Nothing in subsection (1) or (2) shall be taken to imply that:
(a) a person on whom a power is conferred by or under this or any other Act; or
(b) a delegate of such a person;
is required personally to perform all administrative and clerical tasks connected with the exercise of the power.
t)That Parliament enacted s. 501CA(3)(a) having regard to what was an appropriate way for the giving of timely notice of a visa cancellation to a person such as the Applicant, as opposed to a consideration of what might have been the most appropriate way of giving notice to each and every intended recipient having regard to each of their particular personal circumstances, it must also be inferred that Parliament intended that s. 494C(7) would operate so as to validate the giving of notice in a non-compliant way.
u)After setting out the very scenario which the Applicant submits had occurred in the present circumstances, namely the alleged unauthorised/non-compliant giving of notice, s. 494C(7), after contemplating notice having so been given in error, specifically provided for such a scenario by including the words:
… then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so …
v)Use of the word “error”, contextually, was intentional. It must have been used for the purpose of curing that which would otherwise be found invalid.
w)The section has been so drafted in clear, concise and succinct language to render that construction the preferred one in terms of the purpose intended by Parliament. That approach is supported by the provisions of s. 15AA of the Acts Interpretation Act 1901 (Cth) which relevantly provides:
ACTS INTERPRETATION ACT 1901 - SECT 15AA
Interpretation best achieving Act's purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
x)Of that approach it has been said that the task of the court under s. 15AA and its equivalents is to seek to discover the underlying purpose or object of the provision in question and, if possible, to adopt the interpretation of that provision that furthers the purpose or object.[8]
[8] DC Pearce & RS Geddes, ‘Statutory Interpretation in Australia’ (Butterworths, 2001 5th ed) [2.7].
y)To the extent that the above reasons are at odds with the reasons and decision of the primary Judge in Aciek v Minister for Immigration [2017] FCCA 3237, this court respectfully disagrees with His Honour.
z)This ground is without merit.
Error as to scope of power – “consequences for the second decision”
aa)The Applicant submits that the refusal of the Minister on 15 August 2017 to reissue the written cancellation notice constituted an error of law, and that the Minister had misunderstood the scope of his powers under s.501CA(3)(a) of the Act.
bb)The arguments advanced on behalf of the Applicant in respect of the earlier grounds have been found to be without merit. The request made of the Minister to reissue another written cancellation notice was misconceived in the light of the finding that the hand delivery of the written cancellation notice to the Applicant was an appropriate way for the giving of such notice. There is no merit in this ground for the same reasons as referred to above.
Application of Electronic Transactions Act 1999 (Cth)
The Applicant submitted that s 9 of the Electronic Transactions Act 1999 (Cth) (“s”) only permits the giving of a s. 501CA(3)(a) notice to the Applicant by email if the Applicant had first consented to such information being given by way of electronic communication.
Section 9(1)(d) of the ETA provides as follows:
(1) If, under the Commonwealth, a person is required to give information in writing, the person may give the information by means of an electronic communication, where:
…
(d) if the information is required to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity – the person to whom the information is required to be given consents to the information being given by way of electronic communication.
The commencement dates for Acts relevant for consideration under this heading are as follows:
No.
Section/subsection
Commencement date
1.
Electronic Transactions Act – all provisions
15 March 2000
2.
Migration Act – notification provisions (sections 494A to 494D)
10 August 2001
3.
Electronic Transactions Regulations – items 80AA and 80AB of Schedule 1
11 July 2013
4.
Migration Act – section 501CA
11 December 2014
It can be seen from the above that the notification provisions in sections 494A – 494D inclusive commenced after the provisions of s. 9 of the ETA came into effect. The Applicant submits that there is no inconsistency between the provisions of s. 494B(5) of the Act and s. 9 of the ETA, and that therefore, s. 9 of the ETA prohibits the giving of written notice to the Applicant by email without his consent.
The first observation to be made in respect of the Applicant’s submission is that though the written notice was sent by email to the correctional services office, the actual written notice given to the Applicant was delivered in hard copy, by hand, it having been printed out by a correctional services officer for the purpose of its being then given to the Applicant. Such giving of notice falls within a method able to be adopted under the wide scope afforded by s. 494A(1) of the Act, namely a method not stated as being required to be adopted in accordance with one of the methods as provided for in s. 494B of the Act, or otherwise. Such method of giving the written cancellation notice falls outside the provisions of the ETA. In such circumstances, consideration as to whether the Applicant consented to receiving any information from the Minister by email communication, or not, was otiose.
Alternatively, even if one accepts for the purposes of argument that the ETA did apply, and that the cancellation notice was in fact given in an unauthorised way to the Applicant (by hand or by email) under s. 494A or s. 494B(5) of the Act or Reg 2.55 of the Migration Regulations - either because it was handed to the Applicant by a person who was not an “authorised officer”, or otherwise because the notice was first emailed to the correctional service office as part of the process without the Minister having first obtained the consent of the Applicant to do so - the Applicant is nonetheless deemed, pursuant to s. 494C(7) of the Act and Reg 2.55(9) of the Regulation, to have received the notice.
An error in the way in which the cancellation notice was given, if it be the case, does not invalidate such giving of notice. Section 494C(7) relevantly provides as follows:
Document not given effectively
(7) If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
Regulation 2.55, which commenced after s. 494C on 5 December 2008, is of like effect. Of significance, however, is that s. 494C(7) of the Act provides that a person given a cancellation notice in error will nevertheless be taken to have received the notice as if no error had occurred, whereas r. 2.55(9) has no such exonerating provision. There is nothing in Reg 2.55 to indicate that it repealed the provisions of s. 494C of the Act, nor was it provided that it ought to be interpreted as if it had been enacted as part of the Act. In those circumstances, the provisions of s. 494C(7) of the Act ought to apply in the event of the occurrence of an error in the way in which the notice was given.
Section 494C(7) of the Act is inconsistent with the provisions of s.9 of the ETA on the question of whether it is permissible to give effective notice to a recipient in the absence of a recipient consenting to the receipt of such notice by email. There is no indication that to the extent of its inconsistency with s. 9 of the ETA it would not prevail as a later enactment on the same issue in the usual way.
In Goodwin v Phillips (1908) 7 CLR 1 at 7, Griffith CJ said:
…where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are expected or their operation is excluded with respect to cases falling within the provisions of the later Act.”).
Alternatively, the giving of the cancellation notice to the Applicant pursuant to s. 501CA(3)(a) was required to be given in “the prescribed manner” as provided for in s. 501G(3) of the Act. If the prescribed manner is that as provided for in r. 2.55, then r. 2.55(9) exonerates the Minister in the event that the notice was given in error.
In either case, the lack of consent on the part of the Applicant does not render invalid his receipt of the notice.
For the above reasons, there is no merit to the Applicant’s ETA argument.
Conclusion
The Applicant is deemed to have received the written cancellation notice. The Applicant has, to date, elected not to make representations to the Minister as to why the original visa cancellation decision should be revoked, and is now out of time to do so.
The Application for review is dismissed.
The parties have liberty to deliver submissions as to costs by filing them within seven (7) days of the date of the making of these orders.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 7 November 2018
Corrections (21/12/2018)
Applicant’s name replaced with pseudonym.