EFX17 v Minister for Immigration and Border Protection
[2019] FCAFC 230
•16 December 2019
FEDERAL COURT OF AUSTRALIA
EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230
Appeal from: EFX17 v Minister for Immigration [2018] FCCA 3179 File number(s): QUD 871 of 2018 Judge(s): GREENWOOD, RARES AND LOGAN JJ Date of judgment: 16 December 2019 Catchwords: MIGRATION – consideration of the scope of the conferral of jurisdiction upon the Federal Circuit Court of Australia by s 476 of the Migration Act 1958 (Cth) (the “Act”) – consideration of whether the contended failure on the part of the Minister’s delegate to discharge the obligations arising under s 501CA(3)(a) and (b) engages matters in relation to a decision under s 501(3A) notwithstanding no jurisdictional error challenge to the principal cancellation decision under s 501(3A)
MIGRATION – consideration of whether the things required of the Minister (and his delegate) under s 501CA(3)(a) and (b) engage a “decision” for the purposes of s 474(2) and (3) of the Act and in particular s 474(3)(g) – consideration of whether the things required of the Minister (and his delegate) under s 501CA(3)(a) and (b) are merely steps along the way to a “decision” under s 501CA(4) – consideration of whether a “decision” for the purposes of s 501CA(3) is a decision of an “administrative character” for the purposes of s 474 of the Act
MIGRATION – consideration of whether the reasoning in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 is necessarily inconsistent with the reasoning of the Full Court in SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207
MIGRATION – consideration of the content of the obligation arising under s 501CA(3) of the Act – consideration of whether the Minister’s delegate discharged the obligations arising under s 501CA(3) by causing documents to be handed to and signed for by an illiterate person in custody in the circumstances described in the reasons of the presiding judge – consideration of the irreducible minimum standard required by s 501CA(3)(a) and (b) – consideration of the extent to which s 497(2) of the Act operates to confer authority on a person to do those things required of the Minister by s 501CA(3) in circumstances where the person holds a delegation of the power to cancel a visa but not a delegation to do those things required of the Minister (and his delegate) under s 501CA(3) – consideration of the notion of the term “task” in s 497(2) of the Act – consideration of the Carltona principle
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3
Constitution ss 75(v), 120, 122
Corrective Services Act 2006 (Qld) s 66
Criminal Code 1899 (Qld) s 317
Crimes Act 1914 (Cth) s 19A
Electronic Transactions Act 1999 (Cth) s 9
Federal Court of Australia Act 1976 (Cth), s 27
Migration Act 1958 (Cth) ss 5, 425, 474, 476, 476A, 477, 494A, 494B, 496, 497, 501, 501CA
Migration Regulations 1994 (Cth) regs 2.55
Cases cited: Aciek v Minister for Immigration and Border Protection (2017) 327 FLR 412
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Buck v Bavone (1976) 135 CLR 110
BYN18 v Minister for Home Affairs [2019] FCA 1033
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
EFX17 v Minister for Immigration [2018] FCCA 3179
EKU17 v Minister for Immigration and Border Protection [2019] FCA 782
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Griffith University v Tang (2005) 221 CLR 99
Johnson v Buttress (1936) 56 CLR 113
Maye v Colonial Mutual Life Assurance Society Ltd (1924) 35 CLR 14
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188
Metropolitan Borough and Town Clerk of Lewisham v Roberts [1949] 2 KB 608
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Golden Chemical Products Ltd [1976] Ch. 300
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
R v Anunga (1976) 11 ALR 412
Sinanovic v R (1998) 72 ALJR 1050
SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207
TTY167 v Republic of Nauru (2018) 93 ALJR 111
WACB v Minister for Immigration, Citizenship and Multicultural Affairs (2004) 79 ALJR 94
Date of hearing: 8 May 2019 Date of last submissions: 8 May 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 259 Counsel for the Appellant: Mr D Fuller Solicitor for the Appellant: Prisoners’ Legal Service Counsel for the Respondent: Ms AL Wheatley QC with Ms S Forder Solicitor for the Respondent: Clayton Utz ORDERS
QUD 871 of 2018 BETWEEN: EFX17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGES:
GREENWOOD, RARES AND LOGAN JJ
DATE OF ORDER:
16 DECEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders made by the Federal Circuit Court of Australia on 7 November 2018 be set aside and in lieu thereof, it be ordered that:
(a)it be declared that the respondent has not performed his duties under s 501CA(3) of the Migration Act 1958 (Cth) (“the Act”) in relation to the decision of the respondent, by his delegate, made on 3 January 2017 to cancel the applicant’s protection visa under s 501(3A) of the Act.
(b)a writ of mandamus issue requiring the respondent to perform his duties under s 501CA(3) of the Act according to law.
(c)The respondent pay the applicant’s costs.
3.The respondent pay the appellant’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
Background
On 4 January 2017 in an interview room at the Brisbane Correctional Centre, an officer of the Queensland Department of Corrective Services met with the appellant and handed to him a letter dated 3 January 2017 addressed to the appellant signed by a delegate of the Minister for Immigration and Border Protection. By that letter, the appellant was given notice that the Class XA Subclass 866 Protection visa granted to him on 16 December 2009 had been cancelled and that he no longer held a visa.
It will be necessary to return to aspects of that letter later in these reasons but for present purposes, it should be noted that the body of the letter refers to “additional information” in “Attachment 2” that “explains the consequences of the cancellation of your visa”.
The collection of material handed to the appellant at that meeting included an “Information Pack” otherwise called a “Mandatory Cancellation Notification Package”. It seems to be common ground that copies of the papers handed to the appellant that day are contained at pp 50 to 136 (86 pages in all) of the Appeal Book. The delegate’s letter of 3 January 2017 is a six page letter and at p 5 (AB 54) the “Enclosures” are described in this way:
Enclosures
•Important Information sheet
•Revocation Request Form
•Personal Circumstances Form
•Advice by a migrant agent/exempt person of providing information assistance (Form 956)
•Appointment or withdrawal of an authorised recipient (Form 956A)
•Information about legal aid assistance in Australia
•Direction 65
•Attachment 1: character related legislation of the Migration Act and Migration Regulations
•Attachment 2: general information
•Integrated Offender Management System, Sentence Calculation Details report from the Queensland Department of Corrective Services, created on 23 December 2016
On 19 December 2016, the appellant was sentenced to seven years imprisonment by the District Court of Queensland for an offence of “acts intended to maim/disfigure/disable” also described by the Integrated Offender Management System as “malicious acts with intent”. The appellant had been in custody in relation to that charge since 14 August 2014. His custodial end date is 13 August 2021 although he was eligible for parole on and from the date of sentencing on 19 December 2016.
The appellant is a citizen of Afghanistan. He is a Shia Muslim of Hazara ethnicity. He speaks Hazaragi. However, in a submission dated 9 June 2017 (AB 27‑30), by the Prisoners’ Legal Service Inc. (the “PLS”), addressed to the National Character Consideration Centre (“NCCC”) of the Department of Immigration and Border Protection, the PLS (by Ms Helen Blaber), said this:
Capacity
It is our submission that [the appellants] capacity to understand the nature of the visa cancellation and revocation process was significantly impaired.
By way of background, we advise that [the appellant] is illiterate with extremely limited English‑speaking capabilities. He instructs that he cannot read or write in any language and did not receive any schooling in Afghanistan or Iran. He instructs that he was raised in a poor farming community in [Ghazni province] and later worked as a shepherd and child labourer in Iran. He instructs that he has never learned to read or write in English and learned to sign his name when he was in immigration detention in Christmas Island in 2009. He has participated in an introductory English language course that focused on basic, conversational English
Apart from these matters mentioned by Ms Blaber, counsel for the appellant also emphasises the report of Dr Mark Schramm dated 27 June 2017, a Consultant Psychiatrist to the West Moreton Hospital and Health Service. Dr Schramm had a consultation with the appellant on 9 June 2017 following the appellant’s transfer to the Woodford Correctional Centre. Dr Schramm notes that the appellant “has been a client of the Prison Mental Health Service since [August 2014]” and that “he seems to suffer from a schizophrenic illness (currently under reasonable control with regular antipsychotic medication) occurring on the background of substance abuse and traumatic events in his homeland (including having his throat cut by Taliban soldiers)”.
The delegate’s letter of 3 January 2017 and enclosed papers handed to the appellant at the Correctional Centre by an officer of the Department of Corrective Services on 4 January 2017 were given to him, by that means, as a result of an email of 3 January 2017 (at 2.51pm), sent by the delegate (the same delegate that made the visa cancellation decision and signed the letter of 3 January 2017), to the Brisbane Correctional Centre, in these terms (subject to the redacted parts):
Please note that included with the formal notice is an acknowledgement of receipt – see page 6. Please have [the appellant] 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 [the appellant] received the cancellation notification with the attached documents.
A delegate of the Minister for Immigration and Border Protection has cancelled the visa held by [the appellant] pursuant to s 501 of the Migration Act on 3 January 2017.
Please provide the attached cancellation documentation to [the appellant]. It is important that the full documentation is provided to [the appellant] 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 [the appellant] following their [his] release from criminal custody, including immigration detention pending [his] removal from Australia if necessary.
Thank you for your assistance.
…
[original emphasis]
An officer of the Department of Corrective Services obtained the signature of the appellant to the “acknowledgement of receipt”, at p 6 of the 3 January 2017 letter, as requested by the delegate. A copy of the acknowledgement signed and dated 4 January 2017 by both the appellant and the Corrective Services Officer is at AB 44. I will return to aspects of those matters later in these reasons.
One other aspect of the PLS submission of 9 June 2017 (which was before the primary judge) should be noted. The Full Court was taken to it by counsel for the Minister (in the context of an issue about aspects of the jurisdictional challenge made by the Minister to the proceedings before the Federal Circuit Court of Australia concerning arguments about a jurisdictional fact in the context of the statutory provisions). The particular matter is that on 9 January 2017 (five days after the appellant was handed the documents), the appellant had a conversation with an Australian Border Force Officer (Ms Amy Crago). Ms Blaber describes, in the submission, the advice given by Ms Crago about that conversation in this way:
Ms Crago advised our service that [the appellant] appeared to be very confused about the cancellation notice but indicated his intention to seek revocation and stay in Australia until a revocation decision had been made.
So it seems, notwithstanding the appellant’s indication that he held an intention to seek revocation, he was, at least as at 9 January 2017, appearing to Ms Crago to be “very confused” about the cancellation notice.
Although I will turn to the text and context of the relevant statutory provisions later in these reasons, it is sufficient for present purposes to note that the appellant contends that the Minister, by his delegate, having made a decision under s 501(3A) of the Migration Act 1958 (Cth) (either the “Act” or the “Migration Act”) to cancel the appellant’s Protection visa on the ground of an engaged mandatory cancellation obligation (engaged once the Minister is satisfied that the visa holder does not pass the character test on the ground that the person has a substantial criminal record as defined: s 501(3A); s 501(6)(a); s 501(7)(c)), the Minister was also required, as soon as practicable after the making of the cancellation decision, to give the appellant, in the way that the Minister considers appropriate, conditioned by the statutory phrase “in the circumstances”, a written notice setting out the cancellation decision and “particulars of the relevant information”: s 501CA(3)(a). The “relevant information” is information that the Minister considers would be the reason (or part of the reason) for making the cancellation decision, and information that the Minister considers is “specifically about the person”: s 501CA(2)(a) and (b).
Apart from those obligations, the Minister must invite the appellant to make representations to the Minister, within the relevant period and in the manner determined in accordance with the Migration Regulations (Cth) (Reg 2.52), about revocation of the cancellation decision: s 501CA(3)(b).
The appellant says that in discharging the obligation to give notice of the cancellation decision and particulars of the relevant information, in the way the Minister considers appropriate, the Minister is required to reach that state of considered “appropriateness”, “in the circumstances”, as the statute requires. Those circumstances are said to include factors called the “capacity matters” which are said to be the “characteristics and individual circumstances” of the person to whom the written notice and particulars are to be given, which may affect the individual’s “capacity to receive, read, understand and make representations in response to the notice”. The capacity matters are said to include such things as the recipient’s literacy, capacity to understand English, mental capacity and health, and, if in custody, the facilities available to the individual in custody to enable that person to understand the notice and particulars.
The appellant says that the act of the delegate of sending the Corrective Services officers a cancellation letter addressed to the appellant attaching the nominated enclosures (for hand delivery to the appellant) with an instruction to secure the appellant’s signature on the acknowledgement form, fails to discharge the Minister’s obligation under s 501CA(3)(a)(i) and (ii), having regard to the circumstances of the appellant and the capacity matters said to inform the scope of the duty.
As to the invitation required to be made to the appellant by reason of s 501CA(3)(b), the appellant says that the invitation must be “real and meaningful” and in discharging the mandatory obligation to invite the appellant to make representations about revocation, the invitation must, it is said, take into account the capacity matters specifically relevant to the appellant in “formulating the substance of the invitation; and determining how the invitation was to be given”.
The appellant put each of these contentions about the scope and content of the statutory obligation arising under s 501CA(3) to the primary judge in agitating the relief sought in the Federal Circuit Court of Australia.
In those proceedings, the appellant sought a declaration that “the delivery of the material and information to the appellant on 4 January 2017 [described as a purported section 501CA(3) notice]) did not comply with section 501CA(3) of the [Act]”. The appellant also sought the grant of the constitutional writ of Mandamus “requiring the Minister or his delegate to take the action required by section 501CA(3) of the [Act] in accordance with law”.
The primary judge rejected the appellant’s contentions about the scope and content of the statutory obligation arising under s 501CA(3) (and other grounds concerning limitations in the scope of the delegation, a matter I will return to later in these reasons) and dismissed the appellant’s application before that Court. The appellant contends that the primary judge erred in rejecting those contentions and in dismissing the application.
The appellant also says that having identified the true character of the obligations cast on the Minister or his delegate by s 501CA(3)(a) and (b), there was no evidence before the primary judge that provided a basis for finding, as the primary judge did, that the Minister gave the appellant written notice and particulars of the relevant information consistent with s 501CA(3)(a) in a way that could be described as “a way the Minister considers appropriate in the circumstances”(of the appellant), or that the Minister, by his delegate, invited the appellant to make representations for the purposes of s 501CA(3)(b), when the invitation was not real and meaningful having regard to the circumstances of the appellant.
The Minister contended before the primary judge (as the Minister does before this Court on appeal) that the Federal Circuit Court did not have jurisdiction to determine the question agitated before that Court. Put simply, that was said to be so because the cancellation decision was not under challenge on any ground of jurisdictional error and the contended failures on the part of the Minister or his delegate to discharge the s 501CA(3) obligations were simply “procedural steps” or “steps along the way” to a possible decision to revoke the cancellation decision (or not to revoke it) under s 501CA(4) if the relevant decision‑making contemplated by that subsection ever became engaged by reason of representations having been made within the period, and in the manner required, by the Regulations.
Having regard to that contention, it is appropriate to address the jurisdictional question first.
The jurisdictional question
Section 476(1) of the Act provides that subject to the section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. Section 75(v) of the Constitution provides, relevantly, that in all matters in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, the High Court shall have original jurisdiction.
Subject to s 476, the Federal Circuit Court is thus invested with original jurisdiction “in all matters” “in relation to migration decisions” in which, relevantly here, a writ of Mandamus is sought against an officer of the Commonwealth. A “migration decision” is defined to mean, relevantly for present purposes, a “privative clause decision” and a “purported privative clause decision”: s 5 of the Act.
A privative clause decision is defined to mean, relevantly, “a decision of an administrative character made, proposed to be made, or required to be made … under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not) ….”: s 474(2). A privative clause decision is, of course, final and conclusive and must not be challenged, quashed or called into question in any court (s 474(1)(a) and (b)) and is not subject to mandamus, certiorari or declaration in any court on any account: s 474(1)(c). However, s 474 sits conformably with s 75(v) of the Constitution because s 474 must be read “so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of jurisdiction conferred by the Act”, and an administrative decision “which involves jurisdictional error is regarded, in law, as no decision at all”: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (“Plaintiff S157/2002”), Gaudron, McHugh, Gummow, Kirby and Hayne JJ at 506 [76]; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614‑615 [51], Gaudron and Gummow JJ at 618 [63], McHugh J; at 646‑647 [152], Hayne J; see also Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82, Gaudron and Gummow JJ generally.
A purported private clause decision is, put simply, a decision purportedly made under the Act (or a regulation or instrument made under the Act) that would be a privative clause decision if there were no failure to exercise jurisdiction or an excess of jurisdiction: s 5E of the Act.
On 3 January 2017, the Minister’s delegate cancelled the appellant’s protection visa. That “decision” was made under s 501(3A) of the Act. Section 501 of the Act addresses the topic of the refusal or cancellation of a visa on character grounds. Section 501 is set out below:
501 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 the Minster – 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
….
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.
[emphasis in bold italics added]
The elements of the character test are set out in s 501(6). Relevantly for present purposes, s 501(6)(a) provides that a person does not pass the character test if the person has a “substantial criminal record (as defined by subsection (7))”, and subsection (7) provides that a person has a substantial criminal record for the purposes of the character test if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Act.
Section 501(3A) casts a mandatory obligation on the Minister to cancel a visa if the Minister is satisfied that the person does not pass the character test. The act of cancelling a visa pursuant to that mandatory obligation nevertheless involves making a “decision” to cancel once the Minister is satisfied of the relevant matters. Such a decision is plainly enough a “decision” by definition (s 474(3)(b)), and is treated as a decision by s 501CA(1) by describing it as the “original decision’, and is so treated by the parties in this proceeding.
In the proceeding before the Federal Circuit Court the appellant did not call into question the legality of the delegate’s decision to cancel the visa. There was no challenge to the cancellation decision on grounds of want or excess of jurisdiction or on any other ground of jurisdictional error so as to suggest that the decision is “no decision at all” or no decision “under this Act”. That being so, the cancellation decision by the Minister’s delegate on 3 January 2017 is, and remains, a privative clause decision.
Nevertheless, the Federal Circuit Court is invested by s 476(1) with original jurisdiction “in all matters” “in relation to” migration decisions in which a writ of mandamus is sought against an officer of the Commonwealth. Even though the cancellation decision itself is not, by reason of s 474(1)(c), subject to prohibition, mandamus, injunction, declaration or certiorari as no challenge is made of want or excess of jurisdiction or any other ground of jurisdictional error with respect to that decision (which would potentially render the decision no decision at all in law under the Act), the question of whether the Minister, by his delegate, has discharged the statutory obligations cast upon him by s 501CA(3)(a) and (b) which “apply” (by reason of s 501CA(1) where the Minister (by his delegate) makes a decision under s 501(3A)), nevertheless engages matters “in relation to” the migration decision (constituted by the privative clause decision to cancel the visa) and those matters, in relation to that decision, are within the Federal Circuit Court’s jurisdiction.
The matters, in relation to that decision, are whether the Minister has, by his delegate, discharged the imperative statutory obligation cast upon him to do what the Parliament requires of him in giving a former visa holder an opportunity to make representations about revocation of the cancellation decision. It is important to recognise that by s 501(5) of the Act, the protective rules of natural justice and the Code of Procedure set out set out in Subdivision AB of Division 3 of Part 2, “do not apply to a decision under [s 501(3) or(3A)]”. Thus the protective mechanism contained s 501CA(3) and (4) is the substantive measure of procedural fairness otherwise removed in relation to the cancellation decision by s 501(5) of the Act.
Section 476(2) of the Act provides that the Federal Circuit Court has no jurisdiction “in relation to” a privative clause decision, or purported privative clause decision, made “personally by the Minister” under s 501 (or for that matter s 501CA) of the Act. In this case, the decision was made by the Minister’s delegate and thus s 476(2) does not remove from the Federal Circuit Court its jurisdiction invested by s 476(1) “in all matters”, “in relation to” (as described above), the delegate’s migration decision under s 501(3) of the Act.
It is convenient at this point to set out the text of s 501CA of the Act:
501CACancellation 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.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
(6)Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
(7)A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.
Note:For notification of decisions under subsection (4) to note revoke, see section 501G.
Quite apart from the matters discussed at [22]‑[32] of these reasons, the following further jurisdictional matters should be noted.
Subject to s 476, the Federal Circuit Court is invested by s 476(1) of the Act with the same original jurisdiction as the High Court has under s 75(v) of the Constitution in relation to a “migration decision” made by the Minister’s delegate under s 501CA(3)(a) and (b) where two circumstances subsist: first, where the obligation arising under s 501CA(3) is properly characterised as engaging a “migration decision” by the Minister’s delegate; and, second, where the appellant contends that the decision is susceptible of the remedy of the grant of a constitutional writ contemplated by s 75(v) of the Constitution (in this case a writ of mandamus), directing the Minister’s delegate to decide the statutory matters according to law (that is, in conformity with the requirements of s 501CA(3)(a) and (b)) on the ground of a demonstrated excess or want of jurisdiction or other jurisdictional error.
Otherwise, the s 501CA(3) “decision” is a privative clause decision.
The question of whether taking the steps, or purporting to take the steps, required by s 501CA(3)(a) and (b) engages a “decision” falls to be decided as a matter of characterisation of that which is required of the Minister (whether by himself or his delegate) by s 501CA(3) having regard to s 474(3) of the Act which provides that a reference in s 474 to a “decision” includes a reference to any one of the many acts or refusals to act set out at s 474(3)(a) to (j).
Section 474(3)(g) provides that a reference to a decision includes “doing or refusing to do any other act or thing (that is, an act or thing other than the acts or things already described at (a) to (f) of s 474(3)).
Prima facie, as “giving” the appellant the things described at s 501CA(3)(a) and “inviting” the appellant to take the step contemplated by s 501CA(3)(b) do not fall within those acts or things at s 474(3)(a) to (f). Accordingly, s 474(3)(g) is engaged as the “doing or refusing to do of any other act or thing”.
Section 474(3)(j) provides that a reference to a decision includes “a failure … to make a decision”. Section 474(3)(j) is directed to a circumstance where the subject matter of the failure concerns an obligation to make a decision, and renders that failure a decision in itself, whereas s 474(3)(g) is concerned with characterising the “doing or refusing to do of any other act or thing” as a “decision” In this case, subject to the discussion which follows of matters of principle deriving from the observations of Sir Anthony Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (“Bond”), the taking of the steps and thus the doing of the acts or things required of the Minister (or his delegate) under s 501CA(3)(a) and (b) have the characteristics of a “decision” for the purposes of the Act, by reason of s 474(3)(g).
The decision, so understood, would be a “privative clause decision” for the purposes of s 474(2) (the definitional elements of which are mentioned at [24] and [62] of these reasons) but for the appellant’s contention that it is not a decision “under the Act” in the sense contemplated by Plaintiff S157/2002 by reason of the contended ground of want or excess of jurisdiction due to the contended failure on the part of the delegate to engage with the “capacity matters” that are said to condition a valid exercise of the obligations contained in s 501CA(3).
The Minister says that the “doing of the act or thing” contemplated by s 501CA(3) is not a “decision” because doing those acts or things is properly characterised as a “procedural step” by the delegate or a “step along the way towards” a decision contemplated by s 501CA(4), that is, a decision to revoke, or not to revoke, the original cancellation decision.
There are two difficulties with this notion, subject to what follows concerning Bond.
First, the act or thing contemplated by s 501CA(3)(a) and (b) is a “decision” by reason of the text of s 474(3)(g) of the Act and thus a decision for the purposes of the Act.
Second, the character of the act or thing required of the Minister under s 501CA(3) is the means by which a measure of procedural fairness is to be provided to the former visa holder having regard to the non‑application of the rules of natural justice to the original cancellation decision under s 501(3A): s 501(5). This substantive mandatory obligation in s 501CA(3)(a) and (b) (as to the characterisation of s 501CA(3)(b) as a statutory obligation, see Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [6]) is not properly characterised as merely a procedural step or a step along the way to something else, a possible later revocation (or non-revocation) “decision”. It is substantive because it is the act or thing that affords the former visa holder the opportunity to be heard (in writing) as to the reasons why the Minister ought to be “satisfied”, in light of the former visa holder’s “representations”, that there is a “reason why the original decision should be revoked”: s 501CA(4)(a) and (b)(ii). Section 501CA(4)(b)(i) contemplates that the former visa holder might also seek to satisfy the Minister that he or she passes the character test, a consideration which in this case has no application.
One other matter in relation to s 474(3) should be mentioned.
The appellant also says that if the obligation to give the appellant written notice setting out the cancellation decision and particulars of the relevant information, and to invite the appellant to make representations about revocation, does not fall within s 474(3)(g) (or s 474(3)(j)), it nevertheless falls within s 474(3)(h) as “conduct preparatory to the making of the decision”, should the court be satisfied that doing the things required by s 501CA(3)(a) and (b) are properly characterised as procedural steps along the way to a decision under s 501CA(4) to revoke, or not revoke, the original cancellation decision. Those procedural steps along the way would, it is said, be “conduct” anterior and preparatory to a later decision in time under sub-section (4). The observations of Mason CJ in Bond at 335‑338, 341‑342 are called in aid of this approach. Apart from any other matter, one possible difficulty with this approach is that the relevant steps might not be properly characterised as “preparatory” to decision‑making as no decision‑making event is engaged at all unless and until the appellant makes representations within the time and in the manner required by the regulations.
It is now necessary to say some things about the observations of Mason CJ in Bond (Brennan J agreeing from p 365; Deane J also agreeing subject to his Honour’s additional remarks at p 369; Toohey and Gaudron JJ publishing their own joint reasons).
Australian Broadcasting Tribunal v Bond
Although the important observations of Mason CJ in Bond are very well‑known, some aspects of the Chief Justice’s observations relevant to the Minister’s contentions need to be noted here.
In Bond, Mr Bond (and Mr Aspinall) and companies controlled by Mr Bond (in the sense that he was able to control the composition of the Boards), sought judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”) of “decisions, findings and rulings” made by the Australian Broadcasting Tribunal in conducting an inquiry under the Broadcasting Act 1942 (Cth). Eleven “decisions”, and seven “findings or rulings” characterised as “conduct”, were under challenge under the ADJR Act.
The statutory framework within which the questions in issue arose for determination in the High Court (and within which the Federal Court was invested with jurisdiction to review the “decisions” and “conduct” under challenge) arose particularly under ss 5 and 6 of the ADJR Act, that is, judicial review of “a decision to which this Act applies” (s 5) and “conduct [engaged in] for the purpose of making a decision to which this Act applies” (s 6).
The expression “decision to which this Act applies” was defined to mean “a decision of an administrative character made … (whether in the exercise of a discretion or not) under an enactment” (excluding decisions of the Governor‑General and classes of decisions set out in a Schedule to the Act). The term “decision” was not defined by the ADJR Act. However, s 3(2) provided that a reference to the “making of a decision” included a reference to a wide‑range of things set out at s 3(2)(a) to (g).
As to conduct, s 3(5) provided that a reference to “conduct engaged in for the purpose of making a decision” included the “doing of any act or thing preparatory to the making of a decision”, including, relevantly for the issues in Bond, the taking of evidence or the holding of an inquiry or investigation.
Much of the text of those things included within a reference to the “making of a decision” in s 3(2)(a) to (g) of the ADJR Act at the time of the decision in Bond (and now) can be seen in s 474(3)(a) to (g) of the Migration Act relevant to these proceedings, although each of those things, so recited at s 474(3)(a) to (g), are things included within a reference to “a decision” in s 474 rather than a reference to the “making of a decision”.
Section 3(2)(g) of the ADJR Act and s 474(3)(g) of the Migration Act each include, either, the phrase “the making of a decision” (as to the former) or the term “decision” (as to the latter), the “doing or refusing to do any other act or thing”.
However, s 474(3)(h) brings within a reference in s 474 to “a decision”, “conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation”.
Thus, the bifurcation brought about by the ADJR Act as applied in Bond (and now) between judicial review of a “decision” to which the ADJR Act applies and “conduct” engaged in for the purpose of “making” a “decision”, to which the ADJR Act applies, attracts different treatment in s 474(3) of the Migration Act by bringing the preparatory conduct of s 474(3)(h) within the statutory notion of, or reference to, a “decision” within s 474.
Also, s 474(3)(j) brings within the term “decision”, “a failure or refusal to make a decision”.
It is also important to recognise the object of s 474 within the Migration Act that emerges from the text. The Parliament has chosen to render the s 474(3)(a) to (j) matters as those things included within a reference to “a decision” in s 474. Section 474 is addressing the topic of those “decisions”, “under the Act”, which are treated as “final”. It does that by treating a privative clause decision as “final and conclusive”; by creating a statutory prohibition upon challenging such a decision in any court; and by removing the decision from the reach of prohibition, mandamus, injunction, declaration or certiorari, within the limits of the definition in s 474(2) of a privative clause decision: s 474(1).
As earlier mentioned, s 474 sits conformably with s 75(v) of the Constitution because the definition of a privative clause decision in s 474(2) when referring to decisions of the relevant character, made “under this Act”, must be read “so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of jurisdiction conferred by the Act”: Plaintiff S157/2002 at [76].
Subject to that construction, s 474(3) provides that when s 474 refers to a “decision” satisfying the definition and subject matter of a privative clause decision within s 474(2), a reference to a “decision” includes all of the things at s 474(3)(a) to (j) so as to render all such decisions final and conclusive and otherwise within the proscription in s 474(1)(b) and (c) of the Migration Act. This is the Parliament’s clear intention so as to foreclose, to the extent possible as a valid law of the Commonwealth, challenges before a Court to a decision falling within s 474(2) and as brought within s 474(2) by s 474(3). As to this conclusion, see Minister for Immigration and Border Protection v SZSSJ (“SZSSJ”) (2016) 259 CLR 180 at [68] by the Court. The reasoning in SZSSJ is necessarily inconsistent with earlier reasoning of the Full Court in SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207.
The relevant elements of s 474 are set out below:
Part 8 – Judicial review
Division 1 – Privative clause
474 Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
Privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)A reference in this section to a decision includes a reference to the following:
(a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d)imposing, or refusing to remove, a condition or restriction;
(e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article;
(g)doing or refusing to do any other act or thing;
(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j)a failure or refusal to make a decision.
(4)For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
…
(5)The regulations made specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.
(6)A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non‑privative clause decision.
(7)To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):
(a)a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 351 or 417 or subsection 503A(3);
(d)a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.
Although a privative clause decision means a decision of an “administrative character” made, proposed to be made, or required to be made under the Migration Act, and a reference to a decision “includes” the s 474(3)(a) to (j) things, the characterisation of whether a particular statutory subject matter engages a “decision” at all is the subject of some of the observations of Mason CJ in Bond, for the purposes of the bifurcation reflected in the ADJR Act. Reliance is placed by the Minister on some of these observations as characterising that which was required of the Minister (or his delegate) under s 501CA(3)(a) and (b) as merely procedural steps along the way to a possible decision under s 501CA(4).
In Bond, the Chief Justice made the following observations about the notion of a “decision”, in the context of the ADJR Act and the distinction drawn by that Act between “decisions” and “conduct”:
(1)The fact that the ADJR Act is a “remedial statute” indicates that “no narrow view” should be taken of the word “decision”: p 335.
(2)However, the reference in s 3(1) to “a decision of an administrative character made under an enactment”, suggests that a reviewable decision is a decision which the statute “requires or authorizes” rather than merely a “step taken” in the course of reasoning on the way to making the “ultimate decision”: p 336.
(3)The “examples” of a decision listed in s 3(2)(a) to (g) of the ADJR Act indicate a decision having the “character or quality of finality”: p 336.
(4)Because s 3(3) of the ADJR Act extends the “concept” of a decision by deeming a report or recommendation made before a decision is made in the exercise of a power, to be “the making of a decision”, the Parliament did not intend the word “decision” (in its non‑extended form) to “comprehend every decision, or every substantial decision, made in the course of reaching a conclusive determination”: p 336.
(5)Because s 3(5) suggests that acts done preparatory to making a decision form part of “conduct”, reviewable separately from a decision, those acts do not constitute “decisions”: p 336.
(6)Notwithstanding these competing considerations, a “decision” is one for which provision is made under a statute: p 337. Generally, but not always, that will entail a decision which is final, or operative and determinative, of the issue falling for consideration: p 337.
(7)A conclusion reached as a step along the way, in the course of reasoning leading to an “ultimate decision”, would not ordinarily amount to a decision unless the statute, in addressing the point in question, provided that the decision, though an intermediate decision, might accurately be described as “a decision under an enactment”: p 337.
(8)An “essential quality” of a decision (for the purposes of the ADJR Act) is that it be a “substantive determination”. All of the “instances” of a decision in s 3(2)(a) to (f) of the ADJR Act (see also s 474(3)(a) to (f) of the Migration Act), are “substantive in character”. The reference in s 3(2)(g) to “doing or refusing to do any other act or thing” should be read as referring to the “exercise or refusal to exercise substantive power”: p 337.
(9)The distinction between “decisions” and “conduct engaged in for the purpose of making a decision” is “somewhat elusive”: p 341.
(10)However, once it is accepted that a “decision” connotes a determination provided for under an enactment, which is generally substantive and final and operative, the place of “conduct” in the statutory scheme of the ADJR Act “becomes reasonably clear”. “Conduct”, in the statutory setting, points to “action taken” rather than a “decision made”. “Conduct” looks to the way proceedings have been conducted rather than decisions “along the way” to a final determination. “Conduct” is essentially procedural and not substantive in character: p 342. A challenge to conduct is an attack upon proceedings engaged in before the making of a decision. Accordingly, there is “a clear distinction”, under the ADJR Act, between a “decision” and “conduct engaged in for the purpose of making a decision”: p 342.
The statutory setting under the Migration Act requires the doing of the things required to be done under s 501CA(3) to be characterised so as to determine whether those things are a “decision” made, proposed to be made or required to be made under the Act.
Section 501CA(3) is remedial and beneficial because it provides a former visa holder with written notice setting out the cancellation decision, particulars specific to the person whose visa has been cancelled and an invitation to make representations as to revocation.
It is substantive in character because without it, no submissions about revocation have any statutory standing and the making of submissions is critical to the Minister’s consideration of whether he might be satisfied that there is a reason for revoking the decision. It is substantive because it provides the former visa holder with an opportunity to be heard (in writing) about revocation which has the effect, if a decision to revoke is made, of reinstating the former visa holder to his or her former position. It is substantive because it is enabling of an opportunity to satisfy the Minister that the cancellation decision should be revoked and that the former visa holder should not be deported from Australia.
In that sense, s 474(3)(g), like s 3(2)(g) of the ADJR Act, is an obligation required of the Minister of his delegate which is “substantive in character”. It is not merely procedural. Mason CJ, in the statutory setting of the ADJR Act, construed s 3(2)(g) as referring to the “exercise or the refusal to exercise substantive power”. In the statutory setting of the Migration Act, s 474(3)(g) should be read as referring to “the exercise or refusal to exercise a power or obligation”. Nor is it part of a reasoning process leading to a decision. It calls for the discharge of a statutory duty or obligation which engages, as directly as language can, the “doing or refusing to do any other act or thing”. By s 474(3)(g), the doing of the things required by s 501CA(3) are brought within the notion of “a decision” and the character of the things to be done by the Minister is to be regarded as the exercise of a substantive power or obligation.
The steps contemplated by s 501CA(3)(a) and (b), brought within the inclusive reference to a “decision” by s 474(3)(g), for the purposes of s 474, must nevertheless have the character of a decision “of an administrative character” made, proposed to be made or required to be made, under the Migration Act. In Griffith University v Tang (2005) 221 CLR 99 (“Tang”), Gummow, Callinan and Heydon JJ at [79] and [80], in construing the elements of the definition of the phrase “decision to which this Act applies”, in the ADJR Act, noted that the “decision” made, proposed to be made or required to be made, must be “of an administrative character” and observed that this phrase casts some light on the “force” to be given to the phrase “under an enactment” [original emphasis]. Their Honours observed that the relationship between those two phrases gives rise to the question: “What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved” [emphasis added]: at [79].
Their Honours answered the question in this way at [80]:
The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement.
[emphasis added]
The legal right of a former visa holder to be given, in the way the Minister considers appropriate in the circumstances, written notice of the cancellation decision and particulars of the relevant information, and an invitation to make representations to the Minister about revocation of the cancellation decision owes its existence to the “decision”. Thus it is a decision required to be made, under the Act, of an administrative character.
In SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207, the Full Court was considering the question of whether “conduct preparatory to the making of a decision”, included within a reference to a “decision” for the purposes of s 474 of the Migration Act by s 474(3)(h), but which conduct was characterised by the Full Court at [43] as “processes [which] had no legal force”, could be characterised as “a decision of an administrative character made, proposed to be made, or required to be made … under this Act” (that is, a “privative clause decision”: s 474(2)). The Full Court noted at [41] the observations of Gummow, Callinan and Heydon JJ at [79] and [80] in Tang, and concluded at [43], in the context of the conduct in question and so characterised, that:
To conclude that each such step is deemed to be a private clause decision by an expansive construction of s 474(3)(h) would be to ignore its absence of legal effect [which should perhaps be “affect”] and would not serve any useful purpose.
The doing of the acts or things required to be done by s 501CA(3)(a) and (b) do not have an “absence of legal affect (or effect)”. They do not engage preparatory conduct steps characterised as processes which have no legal force. In that sense, the observations of the Full Court in SZQDZ turn upon the role of conduct preparatory to the making of a decision within s 474(3)(h) in the context of the particular conduct in question in those proceedings. However, if a broader view of that authority is thought to apply, see SZSSJ (and [61]) of these reasons.
The content of the obligation arising under s 501CA(3)
The content of the obligation cast by the Act on the Minister (and those acting as a delegate of the Minister) under s 501CA of the Act begins and ends with the text of the relevant sections of the Act construed in context, having regard to the objects of the Act.
Section 501CA begins with, in effect, an “application of laws” provision. The section is engaged if the Minister (either personally or by his delegate) makes a decision under s 501(3A) to cancel a person’s visa. As already mentioned, s 501(3A), among other things, casts an obligation on the Minister to cancel a person’s visa if satisfied that the person does not pass the character test because the person has a substantial criminal record, as defined (and in the case of the appellant, the relevant limb of s 501(3A) was that he had been sentenced to a term of imprisonment of 12 months or more): s 501(3A)(a)(i), s 501(6)(a), s 501(7)(c).
However, s 501(3A) operates more broadly than the circumstances engaging the appellant’s failure to pass the character test and those broader circumstances are relevant to the relationship between s 501(3A) and s 501CA(3).
Section 501CA(1) describes the s 501(3A) cancellation ground as “person serving sentence of imprisonment” for the purposes of the application of s 501CA to such a person. Section 501CA contemplates that the relevant person is a person in imprisonment. As mentioned, because s 501CA applies if a cancellation decision is made under s 501(3A), it is relevant to note aspects of the relationship between the decision made under s 501(3A) and the decision‑making engaged under s 501CA(3) of the Act (and a decision which might be engaged under s 501CA(4) of the Act).
A decision made under s 501(3A), once the Minister is satisfied of the relevant statutory matters, is made in circumstances where the rules of natural justice and the Code of Procedure do not apply: s 501(5). Thus, although the Minister is satisfied of the relevant objectively ascertainable statutory matters, upon which his or her state of satisfaction is conditioned, no discretion to cancel the visa (or not to cancel it) is engaged and the Minister (or his or her delegate) may well not know of any factors, mitigating circumstances, explanatory considerations or a “reason” or “reasons” which might suggest that a visa cancellation decision solely on the ground of “substantial criminal record”, as defined, ought nevertheless not be made, had the decision‑making engaged a discretion within a statutory framework enabling the application of the rules of natural justice.
Section 501CA seeks to come to the aid of a former visa holder who finds himself or herself serving a term of imprisonment pending the carrying out of a “[sentence] to death” (s 501(7)(a)), or a term of “imprisonment for life”, (s 501(7)(b)), or a term of imprisonment of “12 months or more” (s 501(7)(c)), all of which are engaged by a decision under s 501(3A)(i) as supporting the notion that for the purposes of the character test, persons facing those sentences have a substantial criminal record: see [26] of these reasons.
Section 501CA, in such circumstances, requires the Minister, as soon as practicable after making the cancellation decision, to give the person in imprisonment a written notice that sets out the decision made under s 501(3A) (the “notice”) and particulars of the relevant information, as defined. A notice that “sets out the original decision” would need to set out the factors that engage s 501(3A) recognising that a number of possibilities recited in that section might engage a state of satisfaction in the Minister leading to a mandatory cancellation decision. The Minister must also give the former visa holder “particulars” of the “relevant information”, as defined. The relevant information is information that “the Minister considers” would be the “reason” (or part of the reason) for making the cancellation decision, and information that the Minister considers “is specifically about the person” (the “particulars of relevant information”): s 501CA(3)(a)(i) and (ii).
The obligation cast by s 501CA(3)(a) on the Minister is an obligation to give the former visa holder the notice and particulars of relevant information “in the way that the Minister considers appropriate in the circumstances”. Thus, the Minister must consider the way the notice and particulars of relevant information are to be given; and decide a way that he or she considers “appropriate”, “in the circumstances”.
Apart from these matters, the second limb of s 501CA(3) casts an obligation on the Minister, as soon as practicable after the making of the cancellation decision, to invite the person to make representations to the Minister “about revocation” of the cancellation decision: s 501CA(3)(b). The representations must be made within the period and in the manner required by the Migration Regulations. Regulation 2.52(1) and 2.52(2)(b) provide that Reg 2.52 applies to representations made to the Minister under s 501CA(3)(b) of the Act and that for representations in accordance with the invitation under s 501CA(3)(b), the representations must be made “within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act”.
The representations must be in writing and in English or, if the representations are in a language other than English, they must be accompanied by an accurate English translation: Reg 2.52(3)(a) and (b).
The Regulations operate on the inferential footing that neither the Minister nor his delegate is to be put in the position of having to try and read and try and understand documents put to him (or his delegate) in a language with which neither individual (nor the department) is familiar.
Section 501CA(3) and (4) of the Act recognise that notwithstanding that the visa has been cancelled as a mandatory matter under s 501(3A) on the ground that the person does not pass the character test, there may be circumstances that suggest that there is “another reason” why the Minister might be satisfied that the cancellation decision should be revoked. The notice, particulars of relevant information and the invitation to make representations about cancellation, provides the former visa holder with an opportunity, and statutory entitlement, to make representations identifying any factors, mitigating circumstances or explanatory considerations out of which the former visa holder might identify a “reason” why he or she says that the Minister should be satisfied that the cancellation decision should be revoked.
The Minister may revoke the cancellation decision if satisfied that there is a reason why the cancellation decision should be revoked.
Thus, the integrated statutory scheme of s 501 and s 501CA involves a mandatory obligation to cancel a visa under s 501(3A) once the Minister is satisfied of the statutory factors; no application of the rules of natural justice to such a decision; an obligation, as soon as practicable after the making of a cancellation decision, to give the notice and particulars of relevant information in the way the Minister considers appropriate in the circumstances; and the making of an invitation to the former visa holder to make representations about revocation of the original decision.
The obligation to “invite the person” to make representations to the Minister about revocation of the cancellation decision is an obligation to be discharged as soon as practicable after making the cancellation decision. The obligation to invite the person under s 501CA(3)(b) is not conditioned by the words “in the way the Minister considers appropriate in the circumstances” which conditions the giving of the notice and the particulars of relevant information under s 501CA(3)(a).
The irreducible minimum standard of the statutory obligation under s 501CA(3)(a) to give the person written notice that sets out the original cancellation decision and particulars of the reason for making the original decision and information specifically about the person, in the way the Minister considers appropriate (not at large, but rather “in the circumstances”), is that whatever way is selected by the Minister as appropriate, that way must actually meet the statutory standard of giving “the person” written notice of the decision and giving the person “particulars” of the reason for cancelling his or her visa, and the information must be “specifically about the person whose visa has been cancelled”. Thus, even though the Minister (or his delegate) may have considered the “way” selected for giving written notice of the visa cancellation decision and the “relevant information” “appropriate in the circumstances”, the question is whether, having regard to the statutory scheme of s 501(3A) and s 501CA, the way selected by the Minister or his delegate as appropriate, in the circumstances, discharges the statutory obligation to give the former visa holder notice setting out the cancellation decision and particulars of it. In other words, the way selected by the Minister or his delegate as “appropriate in the circumstances”, is simply directed to the way of giving the notice and particulars and does not diminish the scope, burden and standard of the statutory obligation to give notice.
So too, the obligation to “invite the person” to make representations must meet the statutory standard of a real and meaningful invitation to make representations about revocation.
The obligation cast by Reg 2.52 on the former visa holder is to make representations in response to the invitation within 28 days after the former visa holder is given the notice and the particulars of relevant information in discharge of the obligation under s 501CA(3)(a) of the Act. Time runs from that moment in time and thus the giving of the notice and particulars in discharge of the statutory obligation is a critical element in the opportunity afforded under s 501CA(3)(b) to the former visa holder to make representations about why the Minister ought to be satisfied that there is another reason (assuming the former visa holder is unable to show that he or she passes the character test) for revoking the cancellation decision.
The circumstances of the cancellation decision and the s 501CA(3) matters
A preliminary question is whether the primary judge erred, as the Minister contends, by admitting into evidence the affidavit of Ms Blaber affirmed on 19 September 2017.
Ms Blaber is the Principal Casework Solicitor at PLS acting on behalf of the appellant. The affidavit exhibits documents relating to the notice of cancellation of the appellant’s visa and details of PLS’s communications with both the appellant and the respondent concerning the notice of cancellation. The Minister says that Ms Blaber’s affidavit was wrongly admitted because, it is essential to start with the material which was before the Minister; any new material is irrelevant; and, evidence of the manner in which the appellant received the documents, and evidence of what transpired directly as a result of receipt of the documents by the appellant, including his understanding and appreciation of the contents of the notice (and presumably the other documents given to him on 4 January 2017), is also irrelevant. The Minister also says that the affidavit duplicates much of the material already in the Appeal Book in any event. To the extent of any duplication, the appellant accepts that criticism. It should be noted that although the Minister challenges the admissibility of the affidavit, the Minister made brief references to material in it in oral submissions in any event.
The primary judge admitted Ms Blaber’s affidavit as relevant and admissible to the extent that the affidavit seeks to record the manner in which the appellant received the notice of the cancellation of his visa; as to the appellant’s acknowledgement of the receipt of the notice; and, as to the events that transpired “directly as a result of such receipt”.
To the extent that the affidavit duplicates material already in the Appeal Book, the material is before the Court in any event. To the extent that the affidavit goes to facts relevant to the question of whether the Minister’s delegate discharged the obligations contained in s 501CA(3)(a) and (b) of the Act, the affidavit is properly admitted.
On 23 December 2016, Ms Bowdern, a Sentence Planning Adviser within “Sentence Management Services” of the Department of Corrective Services sent an email to “Queensland Prison Parole Liaison” and “Police Liaison Qld” (which seems to liaise with the NCCC within the Department of Immigration and Border Protection), advising that the appellant was in custody at the Brisbane Correctional Centre serving a seven year term of imprisonment with a full‑time release date of 13 August 2021 and a parole eligibility date of 19 December 2016. Ms Bowdern asked whether the appellant was “of interest to your department due to information received that the prisoner was born in Afghanistan”.
On 29 December 2016, Queensland Prison Parole Liaison (Mr Leung), sent an email to the NCCC asking for urgent advice as to whether the appellant “is liable for consideration for cancellation in terms of the s 501 Legislation”.
On 29 December 2016, the NCCC responded advising that the appellant was of interest to the Department “for mandatory visa cancellation”. The author of that email noted that the appellant’s parole eligibility date had passed and asked whether the Parole Board had determined when the appellant would be released on parole.
On 3 January 2017 (15:35AEST), the Minister’s delegate signed a Decision Record for the purposes of s 501(3A) of the Act in which he records this:
Because I am satisfied that the visa holder meets the requirements of sections 501(3A)(a) and (b), I am satisfied that the visa holder is liable for mandatory cancellation under section 501(3A) of the Migration Act 1958 and therefore I must cancel their Class XA Subclass 866 Refugee visa granted on 16 December 2009.
On 3 January 2017 (2:51pm), the same delegate who had made the cancellation decision sent the email set out at [7] of these reasons to the Brisbane Correctional Centre, Sentence Management Services, copied to the Queensland Parole Board at the Department of Corrective Services. The subject was the “Notification of s 501 visa cancellation” and the email attached documents described as “Notice of mandatory visa cancellation.pdf; Mandatory Cancellation Notification Package – version 07.06.16.pdf”.
As indicated in the email quoted at [7], the delegate requested someone within Sentence Management Services at the Brisbane Correctional Centre provide the attached cancellation documentation to the appellant and emphasised that it was important to provide the full documentation to the appellant without delay having regard to the limited period of time within which the appellant would be entitled to apply for revocation of the visa cancellation decision. Particular emphasis was given (as set out in the top section in bold in the email as quoted at [7]) to having the appellant complete the “acknowledgement of receipt” at page 6 of the letter dated 3 January 2017 enclosed within the collection of papers making up the attachments to the email.
The letter sets out the grant of the visa on 16 December 2009; the elements of s 501(3A); the basis upon which the appellant is said to have failed the character test: pages 1 and 2. Attachment 1 to the letter sets out the full text of s 501 including s 501(3A), s 501(6) and s 501(7) consisting of 11 pages of statutory text. The letter tells the appellant that his visa has been cancelled and that he no longer holds a visa. He is told that additional information is set out in Attachment 2 which explains the consequences of the cancellation.
Attachment 2 is described as “General Information s 501(3A)”. It is a one page sheet which explains the cancellation of the visa, the prohibition upon applying for other visas, the proposition that the appellant is subject to removal from Australia and as to “what happens next?”, the information sheet says that if the appellant decides to “request revocation of the cancellation decision he should complete and return the attached Request for Revocation of a Mandatory Visa Cancellation under s 501(3A) within the specified time period”.
Another document described as “Frequently Asked Questions – Mandatory Cancellation” also forms part of Attachment 2. One of the questions is: “I don’t want to leave Australia, what do I do?” The answer is: “When you are advised of a mandatory cancellation you will receive information about how to apply for a revocation of the cancellation decision. If you wish to seek revocation it is very important you do so within the stated timeframe (28 days)”. Another question is this: “What if I haven’t applied for revocation of my visa cancellation within the stated timeframe (28 days)?” The answer is this: “If you have not applied for revocation within the stated timeframe you lose the opportunity to apply and will be removed from Australia at the earliest opportunity. You may apply to the courts if you believe there has been a legal error in the decision to cancel your visa.”
The questions above and set out below are in bold in the document. The document also contains the following questions and answers on the topic of revocation:
Q.Can I appeal a mandatory decision to cancel my visa? What is a “revocation”?
A.You may seek revocation of a mandatory cancellation decision from the Department, but the cancellation itself cannot be appealed. The effect of a decision to revoke is to “reverse” the mandatory cancellation decision and reinstate your visa. Revocation will only be considered at your request within the set timeframe. You will be notified in writing of any decision to revoke or not revoke your mandatory visa cancellation.
Q.What kind of information will be the Department ask for when deciding whether or not to revoke my mandatory cancellation?
A.The Department will ask for information relating to your personal circumstances, such as whether you have any children or family in Australia, whether you have ties to the Australian community, and any court, prison or parole reports. If you seek revocation of your cancellation decision, you will be advised what information to provide. The Department may request that you provide further documents, however, the Department may make a decision on your revocation request based on only the information that you provide. Therefore you must take care to provide all relevant information and evidence about your circumstances.
Q.How long after I apply for revocation will it be before a decision is made?
A.We aim to make a revocation decision as soon as possible after receiving a complete revocation request however constantly adjusting priorities within the National Character Consideration Centre mean it is not possible to be specific regarding timeframes.
In the list of enclosures at page 5 of the letter of 3 January 2017, Attachments 1 and 2 are the last two documents in a package of documents which seems to comprise the material at page 50 of the Appeal Book through to page 136 (approximately 86 pages). The “Frequently Asked Questions” pages are the last three pages in the bundle.
In the body of the letter, the delegate says this about the possibility of revocation:
Opportunity to seek revocation of the cancellation decision
While your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations about revoking the decision to cancel your visa.
You are hereby invited to make representations to the Minister about revoking the decision to cancel your visa. The representations must be made in accordance with the instructions outlined below, under the headings entitled “How to make representations about revocation of the decision to cancel your visa” and “Timeframe to make representations about revocation”.
The decision to cancel your visa may be revoked by the Minister under s 501CA(4) of the Act if you make representations in accordance with the specified instructions and the Minister is satisfied that:
•you pass the character test (as defined by s 501 of the Act); or
•there is another reason why the decision to cancel your visa should be revoked.
The full text of s 501CA of the Act is also included in Attachment 1.
How to make representations about revocation of the decision to cancel your visa
If you decide to make representations about the revocation of the decision to cancel your visa, you can write to us using the attached Revocation Request Form.
Under s 499 of the Act which permits the Minister to issue written directions about the exercise of powers under the Act, the Minister has issued Direction 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA which identifies issues that are relevant to the revocation consideration. A copy of Direction 65 is enclosed for your information. You should address each paragraph in PART C of the Direction that is relevant to your circumstances.
Please note that if the decision‑maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa.
…
Your representations must be in writing and in English, or if in a language other than English, accompanied by an accurate English translation (see Regulation 2.52 of the Migration Regulations 1994 (“the Regulations”), a copy of which is included in Attachment 1.
Time‑frame to make representations about revocation
Any representations made in relation to the revocation of a mandatory cancellation decision must be made within the prescribed timeframe. The combined effect of s 501CA(3)(b) and s 501CA(4)(a) of the Act and Regulation 2.52 of the Regulations is that any representations MUST be made within 28 days after you are taken to have received this notice.
If you make representations about revocation of the visa cancellation decision but the representations are received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider the representations because they would not have been made in accordance with the invitation, as required by s 501CA(4)(a) of the Act.
Lodging the Revocation Request Form.
If you decide to make representations to the Minister to revoke the mandatory cancellation of your visa, it is essential that you complete and lodge the Revocation Request Form within 28 days after you are taken to have received this notice as this timeframe cannot be extended.
If, following lodgement of the Revocation Request Form within the 28 day period, you wish to provide additional information, you may do so. Provided the additional information is received before a decision whether or not to revoke the cancellation is made, the additional information will also be taken into consideration in making the revocation decision.
As this notice was transmitted to you by email, you are taken to have received it at the end of the day it was transmitted.
Where to send your representations about revocation
Your representations (as made in the completed Revocation Request Form) may be sent by mail, email or fax.
[The letter then sets out the postal address, email address and fax number]
Contacting the processing officer
If you have any queries about this notice, you can contact them by fax or email using the details above. You are free to show these documents to someone you think may be able to help you.
In contrast, and as French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ observed, at [68], in their joint judgment in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (SZSSJ), the purpose of s 474(3) is “to spell out an extended meaning of the generic term “decision” for the purpose of the operative expression “privative clause decision””. When this purpose and the central place of “privative clause decision” in the definition of “migration decision” is understood, to construe s 474 as the Minister contends and BYN18 upholds is necessarily to narrow the meaning of “privative clause decision” and thus “migration decision”. In turn, that approach to construction necessarily not only narrows the jurisdiction conferred on the Federal Circuit Court by, and the related limitation of jurisdiction in, s 476 but also narrows the limitation found in s 476A of the Act in respect of the original jurisdiction of this Court. That s 476A limitation is, subject to exceptions expressed in that section, also in relation to “migration decisions”. Thus, the end result of such an approach to construction is, with respect, distinctly odd. The result of such a narrowing of the jurisdiction of the Federal Circuit Court would be that a gap would emerge in a statutory scheme the evident purpose of which, subject to singular exceptions, is:
(a)to relieve the High Court of Australia from the burden of the exercise of its irreducible minimum, original jurisdiction under s 75(v) of the Constitution by conferring a like jurisdiction on the Federal Circuit Court in respect of “migration decisions”;
(b)allowing this Court to exercise, in the usual way, an intermediate appellate jurisdiction in respect of judgments of the Federal Circuit Court in non-family law matters, in this instance, judgments in respect of “migration decisions”, thereby relieving the High Court of Australia from exercising an appellate jurisdiction in respect of judgments given in that court’s original jurisdiction under s 75(v).
A related, evident purpose of Parliament was, within the limits of constitutional legislative competence, to make the reach of “privative clause decision” as comprehensive as possible. The limits of constitutional legislative competence are found in Parliament’s inability to render immune from challenge by constitutional writ, declaration or injunction under s 75(v) of the Constitution in the High Court’s original jurisdiction any decision, failure to make a decision, act or failure to act by an officer of the Commonwealth (into which class the Minister and his departmental officers fall) which involve either a failure to exercise jurisdiction or an excess of the jurisdiction conferred by or under an Act: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, at [76] - [77]. The appellant put the correct position succinctly in his submissions in this way: “It would defeat the evident purpose of section 476 if the appellant had to approach the High Court directly for that relief.”
In EKU17 v Minister for Immigration and Border Protection [2019] FCA 782, Davies J, in the exercise of original jurisdiction, explained, at [19] - [22], how the reasoning in SZSSJ was inconsistent with SZQDZ. I respectfully agree with and adopt without repeating, her Honour’s analysis and her consequential conclusion, at [23], that SZQDZ must be taken to have been overruled by implication by SZSSJ. Her Honour’s analysis provides additional reasons why I am unable to accept that the Federal Circuit Court lacked jurisdiction.
Viewed through the prism of the ADJR Act and Bond, it is very difficult indeed to conceive of the giving of a notice and the making of an invitation as a “decision”. But each is, on any view, the doing of an act. Viewed through the relevant prism namely, s 474(2)(g) of the Act, these actions were, by definition, “decisions”. Thus, for the reasons given, the learned primary judge correctly concluded that the Federal Circuit Court had jurisdiction to hear and determine the appellant’s application. It follows, for these same reasons, that, with respect, I am unable to regard BYN18 as correctly decided.
Construction of section 501CA(3)
The learned primary judge considered (at [38(c)]), that all that s 501CA(3)(a) required was that the Minister consider the appropriate way in which the written notice ought to be given to the person whose visa had been cancelled in the circumstances in which the that person was placed at the likely time of the giving and receipt of the notice. The Minister’s choice was, in his Honour’s view, method of giving based only with no requirement to consider issues relating to the capacity of the person. His Honour adopted a like view of the s 501CA(3)(b) invitation requirement.
The appellant submitted that the evident purpose of s 501CA(3) is “to provide a form of natural justice in relation to what is otherwise a mandatory and irrevocable cancellation decision made without input from the person who is subject to it”.
I readily accept that a natural justice purpose attends s 501CA(3), although I would express the purpose of the provision a little differently. It is to offer a person affected by a cancellation decision which the Minister must make if he reasonably has the relevant satisfaction an opportunity to persuade the Minister to exercise a discretion to revoke the cancellation. For that reason, and as Kiefel CJ, Bell, Keane and Edelman JJ put it in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, at [6], by reference to s 501CA(3)(b) of the Act, “The Minister is obliged to invite the person whose visa is cancelled to make representations about the revocation of the original decision to cancel”.
The next premise in the appellant’s argument was that the reference to “the circumstances” in s 501CA(3)(a) should be construed as requiring the Minister at least “to consider … the circumstances of the recipient known to or reasonably able to be identified by the Minister that may affect the recipient’s capacity to receive, read, understand and make representations in response to that material”. Subjects such as literacy in English and mental incapacity were said to be subjects for such Ministerial consideration. Like sentiments were said to attend the invitation which, by s 501CA(3)(b), the Minister was obliged to give. Otherwise, so the submission went, the giving of the notice and its correlative invitation to make submissions would be an “a hollow shell or an empty gesture”: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31].
It was then submitted by the appellant that there was no evidence of the making of any inquiries on these subjects by the Minister or his delegate prior to the giving of the notice. As to this and questions of the correct statutory construction apart, if the Minister or his delegate either new or ought to have known of the appellant’s illiteracy in English or mental condition, it was for the appellant to lead evidence of this in the Federal Circuit Court. The onus of proof lay on the appellant in the Federal Circuit Court.
On his promoted construction of s 501CA(3)(a) of the Act, the appellant at least had to prove that the Minister or his delegate had constructive knowledge, in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend), at 45, of these personal qualities of the appellant. One might speculate, given the nature of the visa cancelled, that at least in respect of literacy in English and as at the time of the granting of that visa, there just might, somewhere on a file in the Minister’s department, be some notation about this. But speculation is not sufficient. It was for the appellant to obtain evidence of this by freedom of information application or discovery and then to introduce this into evidence in the Federal Circuit Court. There was no such evidence which was so introduced. The absence of any such evidence lends an academic quality to the challenge which the appellant seeks to mount in relation to the construction of s 501CA(3)(a) of the Act.
The Minister’s submission was that s 501CA(3)(a) of the Act was concerned just with the “way”, as in method, of giving the required notice. There being no particular way specified in s 501CA(3)(a) of the Act, other than that Ministerially considered appropriate, the Minister was, so the submission went, permitted, but not obliged, to adopt one of the methods for which s 494A of the Act or the Migration Regulations 1994 (Cth) (Regulations), in particular regs 2.55(1)(a) - (c), provided. I agree that these provisions in the Regulations, on their face, are respectively applicable to notifying of the cancellation decision and to the invitation to apply for the revocation of that decision (because the invitation would, in terms of reg 2.55(1)(c) of the Regulations, be a document “relating to the revocation of the cancellation of a visa under the Act”).
Correctly in my view, the Minister identified that, at the heart of the appellant’s submission about s 501CA(3), was a need for the acceptance of a proposition that, as a matter of necessary implication, for nothing was expressly specified in the subsection, s 501CA(3) required that the Minister consider capacity issues in relation both to the giving of the notice and the extending of the invitation. I understood the reference to necessary implication to take up the well-known observations of Mason J in Peko-Wallsend, at 39 - 40, as to what constituted a “relevant consideration”.
Under the general law, illiteracy in English can be a relevant consideration in the resolution of a variety of controversies, both civil and criminal.
For example, a nominally false answer, fraudulently written on a pre-printed form of contract by an agent of an insurance company, does not enable that company to refuse to honour a policy of insurance on the basis of a warranty given by an illiterate insured as to the truth of statements made on the application for the policy: Maye v Colonial Mutual Life Assurance Society Ltd (1924) 35 CLR 14. If one party to a transaction takes advantage of the illiteracy of the other for monetary or other advantage, that is a species of conduct which can give rise to a claim for relief for unconscionable conduct: Johnson v Buttress (1936) 56 CLR 113; Sir Anthony Mason, “The Impact of Equitable Doctrine on the Law of Contract” (1998) 27 Anglo-American Law Review 1 at 7 - 8.
In the criminal law, an accused’s illiteracy in English can be a basis for the rejection of the tender of a record of an interview between investigating police and the accused: R v Anunga (1976) 11 ALR 412.
However, even at general law, there are limits as to the relevance of illiteracy in terms of the offering of an opportunity to be heard. Thus, in Sinanovic v R (1998) 72 ALJR 1050, Kirby J found no basis for leave to issue a motion to seek revocation of a refusal to grant special leave to appeal to an illiterate prisoner who had received a copy of the transcript of his trial only one week before the hearing of the special leave application. That was because there was no right either under the Constitution or the general law to legal representation on the hearing of the appeal.
In the analogous statutory context of Nauruan refugee law, knowledge on the part of a merits review tribunal of an applicant’s illiteracy and limited understanding of English was one factor, amongst others, which informed a conclusion by the High Court, in the exercise of its then Nauruan appellate jurisdiction, that the tribunal’s failure to adjourn a hearing, an invitation to attend which had been given to that applicant, was unreasonable: TTY167 v Republic of Nauru (2018) 93 ALJR 111 (TTY167).
General law recognition that, in a variety of contexts, illiteracy may place a person in a position of particular and peculiar disadvantage requiring a particular response in law may perhaps have informed the appellant’s challenge to the construction adopted by the learned primary judge. But the present case must be resolved by reference to the text of s 501CA(3) of the Act, read in context and having regard to its evident purpose, not under the general law. That is not to say that the meaning to give the text of the Act or the determination of the reasonableness of a decision might not admit of being informed by the general law recognition just mentioned.
As to textual considerations, a starting, and perhaps also finishing, point is that the text of s 501CA(3) does not distinguish between classes of holders of cancelled visas. On its face, the subsection applies indifferently to all persons subject to a cancellation decision, some of whom may be literate in English or of full mental capacity, some of whom may not be and some of whom may be of varying intermediate degrees of literacy and intellect. And the Minister or a delegate may or may not know of the nature and extent of any illiteracy in English at the time when the visa cancellation decision is made.
These considerations provoke the thought that, at least in respect of the giving of the notice under s 501CA(3)(a) of the Act, if not also in respect of the extension of an invitation under s 501CA(3)(b), the point may be resolved against the appellant by WACB v Minister for Immigration, Citizenship and Multicultural Affairs (2004) 79 ALJR 94 (WACB).
At issue in WACB was whether, as the Act then stood, a proceeding challenging a Refugee Review Tribunal decision had been instituted in this Court within time. That, in turn, depended upon whether and, if so, when the appellant had been “notified” that tribunal’s decision. In their joint judgment, at [43], Gleeson CJ, McHugh, Gummow and Heydon JJ)stated:
[43]The appellant also submitted that the fact that he had little or no education and was illiterate was also relevant to the construction of s 478(1)(b). He contended that, whilst what was required was delivery of the written statement under s 430(1), it was also necessary that it be translated into a language understandable to the appellant (either orally or in writing). As discussed, s 478 is construed by reference to the provisions of the Act. The Act provides a complete answer. The Act does not distinguish between notification given to a person in the position of the appellant and any other visa applicant. Nor does it distinguish between applicants with differing levels of education or literacy.
[Emphasis added]
Strictly, this statement was obiter, because the appeal was allowed on the basis that, as the Act then stood, physical delivery was necessary and this had not occurred, such that time had not run. But obiter statements in a joint judgment of four High Court judges are nonetheless binding upon courts lower in the hierarchy: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, and [134] and [158].
As a matter of construction, “give” in s 501CA(3)(a) is qualified by “the way” and, in turn, “the way” is qualified by “the Minister considers appropriate in the circumstances”. I accept the Minister’s submission that, because s 501CA does not specify that the notice and relevant information must be given in a particular way, for example under s 494B of the Act, the Minister was, for example, able permissibly to adopt a method specified in or under s 494A (which would include any method specifically prescribed in the Regulations): s 494A(1) of the Act. “Way” in s 501CA(3)(a) permissibly embraces the “methods” specified in or under s 494A, if the Minister considers one of these appropriate.
The import of “considers” is that the choice of the way of giving the notice is for the Minister. That does not mean that his choice is unexaminable on judicial review: Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, at 303; Buck v Bavone (1976) 135 CLR 110, at 118-119.
A “considers appropriate” qualification was not present in the provision considered in WACB. It may therefore be arguable that, if the Minister knew, actually or constructively, at the time of choosing the way of giving that the person concerned was an infant, was not of mental capacity, was illiterate or was blind and sent the notice directly to that person, as opposed to a parent, guardian or carer, his choice of way might be amenable to judicial review on the basis of unreasonableness, or failure to take into account such a circumstance. The appellant contended as much. The difficulty with confining the focus of s 501CA(3) just to a choice of means or “way”, isolated from the personal circumstances of the person whose visa has been cancelled, is that, in context, there is no reason to read down “the circumstances” as excluding those of the person whose visa has been cancelled and every reason to read that expression as including but not limited to that person’s circumstances.
However, no concluded view need be reached on these subjects, because there was no evidence that the Minister either knew or ought to have known of the appellant’s particular literacy or mental capacity circumstances.
In this case and subject to the appellant’s “delegation” submission, the handing of the notice and relevant information to the appellant by a DCS officer, at the request of the Minister’s delegate was, permissibly, a “way” of giving the appellant the notice and the relevant information, such is the breadth of choice given to the Minister by s 501CA(3)(a). Further, there is no doubt on the evidence that the documents concerned were “given”, even if that required receipt. The documents were hand delivered and the appellant signed for them.
The learned primary judge adopted a similar approach to the invitation requirement found in s 501CA(3)(b) as he had to the notification requirement found in s 501CA(3)(a) of the Act. The personal characteristics of the appellant were not relevant in his Honour’s view. That view was informed by an apprehension as to difficulties in public administration which would attend any need expressly to advert to the person’s particular circumstances.
As to the s 501CA(3)(b) invitation requirement, the Minister embraced the approach to construction of the primary judge. Such an approach would be consistent with that adopted in WACB in relation to the meaning of “giving”, but that case had nothing to say about the context and purpose of the extending of an invitation.
The appellant relied, by analogy, on the statement made by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 (SCAR), at 561, [37], in relation to the tribunal hearing invitation requirement in s 425 of the Act, that, it imposes an “objective requirement” on the Tribunal, as a precondition to the valid exercise of its jurisdiction, to extend a “real and meaningful” invitation to an applicant to attend the Tribunal’s hearing”. The appellant submitted, that, as a consequence of his personal circumstances, the invitation extended to him had not been “objectively meaningful” such that there was a compliance failure which involved a jurisdictional error.
There is no doubt that the extending of the invitation under s 501CA(3)(b) serves an important procedural fairness end. Upon cancellation of a non-citizen’s visa, that person becomes an unlawful non-citizen (s 13 and s 14 of the Act) liable to immigration detention (s 189 of the Act) pending deportation (s 198 of the Act). So the right conferred by the invitation to make representations under s 501CA(4) to the Minister to exercise his discretion to revoke the cancellation is a valuable one, touching not just on personal liberty but on an ability to remain in Australia at all. An invitation under s 425 of the Act to attend an Administrative Appeals Tribunal hearing and there to make submissions and lead evidence to the end of persuading the Tribunal to grant a visa is a similarly valuable right. So the analogy prayed in aid by the appellant is not misplaced.
The difficulty for the appellant is that pursuing this analogy beyond SCAR, takes one to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li). Li was also cited by the appellant but without appreciation of a critical difference between what was said in that case and what had earlier been said in SCAR. The relevant passage in Li is in the joint judgment of Hayne, Kiefel and Bell JJ where, at [61], their Honours observed of s 425’s analogue, s 360:
Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal’s knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.
[Emphasis added; footnote references omitted]
The emphasised qualification, “to the Tribunal’s knowledge” accords with a consideration regarded in TTY167 as relevant to a conclusion of unreasonableness.
As with the giving of notification in WACB, the invitation to make representations requirement applies indifferently across a range of persons whose visa has been cancelled, admitting of an infinite variety of literacy and comprehension capacities. So it is difficult, in light of WACB, to see why, at least in the absence of knowledge, an invitation need be given other than in English and by a means permitted by the Act. But construing s 501CA(3)(b) so as to require that the Minister, where he does know, either actually or constructively, of circumstances which would render a usual form of invitation to make representations neither real or meaningful, to tailor an invitation accordingly offers a way of reconciling what was said in WACB in relation to the giving of notice with the observations made in Li and TTY167.
In my view, in the absence of such knowledge, the Minister is under no obligation to take account of literacy or other comprehension capacity issues. The public administration consideration to which the learned primary judge referred is not irrelevant to this conclusion. However, if such knowledge is present, the administrative task of inviting the person whose visa has been cancelled may in the circumstances be unreasonable or, put another way but to no different end, be neither real nor meaningful. I cannot, with all respect, regard SCAR as correctly decided in light of WACB, Li and TTY167. That is so whatever may otherwise have been the position prior to these cases: qv Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [94] per French J, at [134] per Allsop J and at [212] per Graham J. It is not sufficient that, objectively, the invitation can be seen to have been neither real nor meaningful. The appellant was required to prove that the Minister’s delegate either knew or, constructively knew, of his illiteracy and mental health condition. This he did not do.
The Electronic Transactions Act 1999 (Cth)
Seemingly on the footing that the Minister’s delegate’s emailing of the notification and invitation to the generic DCS email address were the relevant acts, the appellant submitted that, in the absence of his consent to this particular means of communication, and none had been given to the Minister, it was not effective, having regard to s 9(1)(d) and s 9(2)(d) of the Electronic Transactions Act 1999 (Cth) (ETA).
The text of these provisions is reproduced in the judgment of the learned primary judge. His Honour (at [43]) regarded the ETA point as “otiose”, given that both the notification and invitation had been handed to the appellant after having been printed out from the email. I agree. In these circumstances, it is neither necessary nor desirable to consider what might have been the interaction between the Act and Regulations and the ETA if there had been no physical delivery of the notification and invitation.
That the notification and invitation were physically delivered not by the Minister’s delegate or by any officer of the Commonwealth in the department for that matter highlights the importance of the appellant’s submissions regarding the absence of “delegation” by the Minister to the person who sent the notice and invitation to the appellant, or to the person who physically delivered them to him.
The absence of delegation challenge
The appellant submitted that the giving of a s 501CA(3) notice and invitation were not mere administrative or clerical tasks within the meaning of s 497 of the Act. Accordingly, it was submitted that the physical delivery of them to the appellant by a DCS officer, even at the request of the Minister’s delegate, was ineffective.
Section 497 of the Act provides:
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.
The learned primary judge (at [38]) regarded s 497 of the Act as an answer to the appellant’s challenge to the lawfulness of the means by which the appellant had been given the notice and invitation. In this regard also, I agree with his Honour.
As the learned primary judge appreciated, a contrary view, with the correctness of which he differed, was expressed by Judge Manousaridis in Aciek v Minister for Immigration and Border Protection (2017) 327 FLR 412 (Aciek). In Aciek, it was held that the tasks prescribed by s 501CA(3) of the Act were properly characterised as a “power” of the Minister, delegable in accordance with s 496 but were not tasks “in connection with the cancellation” of a visa as described in s 497.
In my respectful view, there is no power found in s 501CA(3) of the Act. Rather, there is, in s 501CA(3)(a), a statutory requirement for administrative consideration by the Minister or the delegate of the appropriate way, in the circumstances, of giving notice of the visa cancellation decision. Once that consideration has occurred and an appropriate way identified, its execution is nothing other than an administrative task in the giving of notice of visa cancellation.
As to the giving of an invitation under s 501CA(3)(b), that it is important and a matter of obligation I have already accepted, but these features do not convert what is found in that subsection into a statutory power. The giving of the invitation is correctly characterised as a task arising under s 501CA(3)(b). Further, like the giving of the notice of cancellation, the giving of the invitation to make representations is, in terms of s 497(2) of the Act, a task in connection with the cancellation. That is the natural meaning to give to the language of s 497(2) of the Act.
Further, as the learned primary judge opined (at [38(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.” The same is true of a s 501CA(3)(b) invitation.
Section 501CA is only applicable to a situation where the cancellation power has been exercised pursuant to s 501(3A) of the Act: s 501CA(1). One of the preconditions to the exercise of that cancellation power is that the person concerned “is serving a sentence of imprisonment, on a full-time basis in a custodial institution” (s 501(3A)(b)) of the Act in respect of an offence against Commonwealth, State or Territory law. Thus, in context and necessarily, both the giving of the notice and the invitation will be to a person who is incarcerated in a penal institution.
As to those imprisoned in respect of offences against Commonwealth laws, s 501CA(3) of the Act has been enacted against the background of the provision in s 120 of the Constitution for the States to make provision for the detention in their prisons of persons accused or convicted of offences against Commonwealth laws. Pursuant to authority granted in s 120 of the Constitution and, as to the self-governing territories, s 122 of the Constitution, the Parliament has enacted s 19A of the Crimes Act 1914 (Cth), which assimilates the detention of federal offenders in a State or Territory with State or Territory offenders in relation to their detention and transfer within the State or Territory prison system. Conceivably, that could be a walled prison in or near a metropolitan area or it might be what, for example the Corrective Services Act 2006 (Qld) terms a “work camp” in a rural area: see s 66 of that Act. Federal offenders aside, it is a necessary implication from their context and purpose that the notification and invitation obligations in s 501CA(3) will mesh in with the administration of the State or Territory prison or other detention facility in which the person whose visa has been cancelled is imprisoned at the time. That is exactly what occurred in the present case. At the request of the Minister’s delegate, the notice and the invitation were each physically delivered to the appellant by a DCS officer. They were in this way lawfully given to the appellant for the purposes of s 501CA(3). Insofar as Aciek stands for a contrary proposition, it should be over-ruled.
Conclusion
For the reasons given, there is no merit in any of the grounds of appeal. The appeal should therefore be dismissed, with costs.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 16 December 2019
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