Hillman-McLean v Minister for Home Affairs

This matter concerned an application by Hillman-McLean (the applicant) for judicial review of a decision by the Minister for Home Affairs (the respondent) to deem his application for revocation of a visa cancellation invalid. The applicant had been serving a prison sentence at the East Perth Remand and Re-entry Prison (ERGP) when his visa was cancelled under s.501(3A) of the *Migration Act 1958* (Cth). He alleged that he submitted an application for revocation of this decision to prison officers within the prescribed timeframe, but the prison failed to forward it to the relevant department. The respondent’s decision deeming the application invalid was based on the applicant not having made representations within the timeframe stipulated by Regulation 2.52 of the *Migration Regulations 1994* (Cth).

The central legal issue before the Court was whether the applicant had made his application for revocation of the visa cancellation within the time prescribed by Regulation 2.52. This required the Court to consider whether the applicant's submission of the application to prison officers at a state correctional facility, while he was in immigration detention as defined by the Act, constituted a valid submission for the purposes of the *Migration Act*. The Court also had to determine whether the obligations outlined in s.256 of the *Migration Act*, concerning the provision of reasonable facilities to persons in immigration detention, extended to state prison officers in the same manner as they applied to officers in designated immigration detention facilities.

The Court reasoned that while s.256 of the *Migration Act* imposes obligations on those responsible for immigration detention to provide reasonable facilities, including the transmission of documents, the application of this section to state prison officers was not straightforward. The Court distinguished the present case from *AMK16 v Assistant Minister for Immigration and Border Protection* [2016] FCA 1557, where a concession by the Minister led to a finding of a breach of obligation. In *BVA18 v Minister for Home Affairs (No.2)* [2019] FCCA 744, a similar distinction was drawn between immigration detention facilities and state correctional facilities. The Court noted that imprisonment is fundamentally different from immigration detention, and it was not evident that state prison officers are susceptible to the same directions from the Minister as officers in immigration detention centres. Crucially, the Minister in this case did not make a concession similar to that in *AMK16*, and the applicant had not demonstrated that the status of state prison officers as "officers" under the Act carried material substance in terms of their duties to transmit documents on behalf of detainees.

The Court found that the applicant had not established that the state prison officers had a duty to transmit his revocation request. Consequently, the application for judicial review was dismissed.