Hillman-McLean v Minister for Immigration (No.3)
[2020] FCCA 2546
•11 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HILLMAN-MCLEAN v MINISTER FOR IMMIGRATION (No.3) | [2020] FCCA 2546 |
| Catchwords: MIGRATION – Cancellation of Special Category visa – decision that representation made to Minister was outside of legislative time limit – where applicant claims he had previously handed representations to “prison officer” within time limit – whether applicant did so – whether prison officer serves as Ministerial proxy – whether prison officer has a duty, express or implied, to transmit documents to the Minister – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 99, 103, 273, 501, 501CA Migration Regulations 1994 (Cth) |
| Cases cited: AMK16 v Assistant Minister for Immigration & Border Protection [2016] FCA 1557 BDS20 v Minister for Immigration [2020] FCA 1176 BVA18 v Minister for Immigration (No.2) [2019] FCCA 744 |
| Applicant: | TAMAIKOHA HILLMAN-MCLEAN |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | PEG 316 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 18 February 2020, 9 April 2020, 8 May 2020 and 3 June 2020 |
| Date of Last Submission: | 1 July 2020 |
| Delivered at: | Perth |
| Delivered on: | 11 September 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr G T Johnson |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
All previous orders in this matter be discharged.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 316 of 2019
| TAMAIKOHA HILLMAN-MCLEAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of a delegate of the respondent (the “Minister”) dated 5 August 2019 (CB 104). The delegate determined that the Minister cannot consider revoking the decision to cancel the applicant’s Special Category (Class TY) visa (the “visa”) because the applicant’s representations had not been received within the prescribed legislative time frame.
Background
An accurate overview of the background to this matter is provided by Counsel for the Minister in written submissions dated 11 February 2020. The Court adopts Counsel’s summary as its own. With minor amendments it provides as follows.
The applicant is a citizen of New Zealand. He arrived in Australia in May 2008. He was 17 at the time of his arrival.
On 5 January 2011, the applicant was granted the visa (Court Book (“CB”) 1).
On 8 May 2017, the applicant was sentenced by the District Court of Western Australia to a term of imprisonment (CB 12).
On 20 June 2017, a delegate of the Minister sent the applicant a notice that his visa had been cancelled pursuant to s.501(3A) of the Migration Act 1958 (Cth) (the “Act”). Section 501(3A) provides that:
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.
The Minister’s notice of cancellation was hand-delivered to the applicant at the Eastern Goldfields Regional Prison on 20 June 2017 (CB 42).
The cancellation notice contained the following information (CB 1-4):
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”.
…
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.
…
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 s501CA(3)(b) and s501CA(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 s501CA(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.
…
As this notice was given to you by hand, you are taken to have received it when it was handed to you.
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.
If you decide to send your representations by mail, you should send it to:
Postal address:
National Character Consideration Centre
Department of Immigration and Border Protection
GPO Box 241
MELBOURNE VIC 3001
(Emphasis in original)
The applicant acknowledged receipt of this information on 20 June 2017 (CB 42).
On 29 May 2019, the applicant (who had been released from prison and transferred to immigration detention at Yongah Hill, Western Australia) sent an email to the Department’s National Character Consideration Centre (“NCCC”) seeking a “possible reissue of Revocation notification” (CB 45). The applicant stated (CB 42):
I … have been in detention now for 3 weeks and have since discovered how easy it is to access the internet and other sources of help to access my file with the NCCC. I beleive the department of home affairs did not receive a signed declaration by both i and the department of corrections to confirm with receiving the revocation package and notification from the NCCC. I am asking in a desperate attempt if i could please be reissued with the revocation and notification.
(Without alteration)
On 30 May 2019, the NCCC responded to the applicant’s email informing him that, according to its records, the applicant had been handed the visa cancellation notification package on 20 June 2017 and had signed the Acknowledgment of Receipt of the Cancellation Notice on 20 June 2017 (which was then received by the Department on 21 June 2017) (CB 44).
On 30 May 2019, in response to the NCCC’s email, the applicant sent a further email making an enquiry in the following terms (CB 43):
In reply to your email yesterday i am just wanting to know if i can still complete the revocation application and send to the NCCC? Also from my understanding is it that i need to apply for a request for revocation? Can you send me a revocation package please to po box 906, Mitchel ave, yongah hill detention centre PERTH, thank you.
(Without alteration)
On 31 May 2019, the NCCC responded to the applicant’s email informing him that if he decided to lodge his revocation request it would be deemed invalid as it had not been filed on time (CB 43). The NCCC suggested that the applicant seek further advice from a migration agent or lawyer.
On 3 June 2019 and 19 June 2019, the applicant sent respective letters to the Department in which he asserted that he had prepared and attempted to submit a revocation request in early July 2017 (CB 46 and CB 50). He also indicated that his earlier emails to the Department (sent on 29 May 2019 and 30 May 2019) were not sent by him but by a fellow detainee and that the detainee had ‘misinterpreted’ his explanation.
On 9 July 2019, the applicant sent the NCCC a request for revocation of the cancellation of his visa (CB 55). In a document accompanying the revocation request dated 9 July 2019 (CB 94) the applicant stated:
In 2017, I was serving a term of imprisonment, I was given served some documents, from the Officers at Kalgoorlie Prison (Eastern Goldfields Regional Prison). Within these documents was a Cancellation notice of my visa. The cancellation was made pursuant to section 501(3A) of the Migration Act 1958.
I scrambled around, contacting family and freinds [sic] and I had all my references, job offer, etc sent into me at Kalgoorlie Prison, I then with the assistance of Peer Support workers at the prison, and also the prison chaplain, I documented everything and formed a package, to present as my response to the cancellation.
I organised with their Senio Officer on duty, one day, to have the package posted off to the NCCC Department, from memory I believe it was a Melbourne address. Nonetheless, it left my possession into the senior Officers possession and he assured me that it would be placed in the post the following morning, once he had gone through it. (As all post is searched and read in priosn, both in and out) …
(Without alteration)
On 15 July 2019, the NCCC sent an email to a number of email addresses within the Department of Justice, Western Australia, seeking information regarding the applicant’s claims to have attempted to send documents from the Eastern Goldfields Regional Prison in 2017 (CB 97-99). On 16 July 2019, the Eastern Goldfields Regional Prison responded to the NCCC’s request for information, as follows:
Mr Hillman-Mclean did get released from Casuarina Prison to Immigration, I have asked then to have a look in is file and the only they can find is the acknowledgement of receipt letter signed 20/6/17.
We have had a look on his mail listing and there was no outgoing mail listed to NCCC and no prisoner notes were made on the system to state the mail had been submitted and sent.
When we find any more information we will let you know.
(Without alteration)
On 23 July 2019, the NCCC sent the applicant an email that asked him to provide the exact date when his revocation request was posted to the Department and evidence which showed that he had previously posted his revocation request to the Department (CB 101-102).
On 23 July 2019, the applicant responded to the NCCC’s email. He stated (CB 101):
a)he could not confirm the exact date it was posted;
b)he recalled having all of the necessary paperwork filled out within a day of receiving them from the NCCC, with the assistance of Peer Support at the prison;
c)references were posted to him from family members;
d)once he had his full file completed, the “wing officer” at the prison gave him an A4 envelope into which he placed the documents, and that once the address was written on the envelope the same officer took it from him, in the wing office, and organised the posting on his behalf;
e)he envisaged that it was lodged in the post to the NCCC’s address no earlier than 26 June 2017 and no later than 1 July 2017;
f)all post leaving the prison is put in the box, or if larger than a normal envelope, is given to the “wing officer” and, once it has been searched and read by the officers, sent out to the external mail provider for delivery; and
g)otherwise, he did not have any evidence of the postage.
On 25 July 2019, the applicant sent a further email to the NCCC in response to its email sent on 23 July 2019 (CB 103). He stated:
In regards to the evidence or confirmation of the postage from the prison, I have just spoken to Ms Carmen at Kalgoorlie Prison and she advised there are no records of outgoing mail.
On 5 August 2019, a delegate of the Minister determined that the applicant’s representations in support of his request for revocation of the cancellation of his visa were not made within the prescribed legislative time frame (i.e., by 26 July 2017).
Accordingly, the delegate determined that the Minister could not consider revoking the decision to cancel the applicant’s visa (CB 104).
The delegate’s decision provides as follows (CB 104):
On 20 June 2017 your Class TY Subclass 444 Special Category (Temporary) visa was cancelled under s501(3A) of the Migration Act 1958. By letter dated 20 June 2017, you were invited to make representations to the Minister about revoking the decision to cancel your visa. The letter also stated that your representations about revocation needed to be lodged within 28 days after the day you were taken to have received the invitation.
The Department has determined that your representations were not made within the prescribed time frame. Therefore, the Minister cannot consider revoking the decision to cancel your visa.
(Without alteration)
The applicant commenced proceedings in this Court by application filed on 15 August 2019. The applicant’s grounds of review are detailed below.
This matter originally came before Judge Jarrett of this Court on an urgent basis on 16 August 2019. Orders were made on that date issuing an injunction against the Minister from removing the applicant from Australia until further order. The reasons for doing so were explained in Hillman-McLean v Minister for Immigration [2019] FCCA 2281.
On 31 August 2020, the applicant was moved from detention in Perth to Christmas Island. On 1 September 2020, Judge Street of this Court heard an interlocutory application filed by the applicant seeking a transfer from detention on Christmas Island to detention in Perth. That application was denied: Hillman-McLean v Minister for Immigration (No 2) [2020] FCCA 2445.
Proceedings in this Court
In his application for judicial review the applicant raises two grounds of review:
1. The applicant applied for a revocation of a decision made by a delegate of the minister to cancel the applicant’s visa which he submitted within the timeframe while serving a prison sentence at the ERGP prison but the prison failed to forward the application to the NCCC.
2. The respondent’s decision which deemed the applicant’s application to revoke the visa cancellation invalid and did not enquire to the department of correction services and EGRP of Western Australia to confirmed the applicants claim that he submitted the application to the prison to be mailed within the timeframe.
The applicant was given an opportunity to file any amended application, affidavit evidence and an outline of submissions. The applicant obtained legal representation for a short period of time. Unfortunately, the applicant’s legal representatives withdrew from the matter. The applicant remained unrepresented for the proceeding.
This is regrettable. The factual and legal issues that arise here are complex. As discussed below, the Court has done what it can do to assist the applicant. Unfortunately, the applicant struggled to explain how his grounds of review point to jurisdictional error on the part of the delegate.
On the basis of the submissions made and the evidence before the Court, the Court has determined that the applicant is asking the Court to address two questions in determining whether the delegate has fallen into jurisdictional error:
a)the factual question of whether the applicant gave the prison officer on duty the revocation request (i.e., the representations) (the “Factual Issue”); and
b)the legal questions of whether in handing the revocation request to the prison officer this was, in effect, handing the revocation request to the Minister, or whether the prison officer (having been handed the revocation request) had a duty to pass on the revocation request and failed in executing that duty such that it had some effect on the Minister’s duties amounting to jurisdictional error (the “Legal Issues”).
In addressing these questions, the Court notes that on 4 December 2019 the applicant attempted to lodge a statutory declaration of Ms Athena Hersom dated 26 November 2019. Ms Hersom was a prison officer at the time the applicant was incarcerated. That document was rejected for filing by Registry staff. Ultimately, Ms Hersom affirmed an affidavit dated 20 March 2020 which was included in the evidence before the Court. As discussed below, Ms Hersom also attended for cross-examination.
As discussed below, the applicant relies on Ms Hersom’s evidence to prove his claim that in June or July 2017 he gave a prison officer a package constituting representations to the Minister to revoke the cancellation of his visa.
The Court also notes that the Minister filed an affidavit of Ms Rizza, an employee at the National Character Consideration Centre (the “NCCC”). Ms Rizza deposes to her knowledge of the record management processes for revocation requests. In effect, Ms Rizza states that there is no electronic or physical record of a revocation request from the applicant being received prior to 26 July 2017.
The matter was first heard on 18 February 2020. The applicant (who was in immigration detention in Perth) appeared in person and was cross-examined at length by Counsel for the Minister.
During the course of cross-examination, the applicant discussed an email that was not in any of the materials before the Court. The applicant was able to provide a copy of the email (Exhibit 3) which was subsequently provided to Counsel for the Minister to review.
Counsel for the Minister indicated that he had not seen the email and needed to obtain instructions in light of its content. After seeking instructions, Counsel for the Minister indicated that further written submissions might better assist the Court. The Court agreed, noting that this would also allow the applicant an opportunity to properly review any submissions made and respond (if he wished to do so).
The Court provisionally listed the matter for 9 April 2020 and indicated that if, after reviewing any submissions made, it felt it necessary for the parties to return, they could do so on that date.
On 1 April 2020, Chambers sent an email to the parties indicating that the Court did not require any further appearances from them. The Court also indicated, however, that if either of them wished to make further oral submissions, then the Court would reconvene.
The Minister responded on 3 April 2020 indicating that it did not wish to make any further submissions – but advising that it did seek to rely on an affidavit of Ms Tattersall dated 3 April 2020. Ms Tattersall’s affidavit annexed correspondence indicating that the Minister had formally requested Ms Hersom to attend for cross-examination but that no response had been received.
The applicant responded on 5 April 2020 (this correspondence was marked as Exhibit 4) as follows:
Please could I advise the courts, that unless His Honour wishes for me to be present and ask me any questions on April 9th 2020, I do not believe that a hearing will be necessary.
However, in regards to the respondents submission that they wished for the officer from Kalgoorlie Prison (EGRP) to be present and to be cross examined - it is my submission that I have power or authority to request the officer to attend court or be available for any hearing.
If the respondent, and or the court wish to summon the author of that affidavit to attend the court to be cross examined, that would go to serve as a good scenario for myself to be able to further prove that I hand in my paperwork and within the timeframe allocated to do such.
For the respondent to submit that they expect myself to ensure she attended the next hearing, in unfair as I am in an immigration detention centre, currently on complete lockdown due to Covid-19.
Nevertheless- I would not be in the position to ensure an ex prison officer attended court, on my day so.
With the above submitted into evidence, and unless His Honour wishes, I do no not feel the need for a further hearing.
(Without alteration)
On 9 April 2020, the Court held a Directions Hearing to discuss the applicant’s email of 5 April 2020. The applicant indicated that it was difficult for him to run his case from immigration detention and could not guarantee that Ms Hersom would appear if asked to do so.
At the time the applicant was first advised that Ms Hersom was required for cross-examination (being 11 February 2020), there were no restrictions in place as a result of the coronavirus. At that stage, any difficulties arose only from the fact that the applicant was in detention.
The fact that an applicant might have to organise or prepare for a hearing from prison (or detention) is not (alone) a frustration or impediment to a fair hearing: Rich v Groningen [1997] VSC 35.
Nevertheless, the Court is not unsympathetic to the concerns raised.
On 9 April 2020, the Court, again noting that the applicant did not have a lawyer, made orders granting him additional time to file a subpoena requiring Ms Hersom to attend before the Court.
The applicant filed a subpoena on 1 May 2020.
At the hearing on 8 May 2020, despite the Court’s very clear request that the applicant appear by video-link, he appeared by telephone link as a result of an “oversight” on the part of immigration detention officials. The telephone link provided was unsatisfactory and made it almost impossible for the applicant to engage with the Court.
The applicant was asked whether he had made arrangements for the service of the subpoena on Ms Hersom. The applicant indicated that he had not done so.
The Court adjourned to 3 June 2020 and indicated that the applicant should use this additional time to contact Ms Hersom to ensure that she would provide evidence to the Court.
The applicant asked that he be brought into the Court for the hearing on 3 June 2020. The Court made arrangements to ensure that this occurred.
At the hearing on 3 June 2020, the applicant indicated that Ms Hersom would not be attending in Court but that he had her telephone number if the Court wanted to contact her and hear her evidence by telephone.
The Court was able to contact Ms Hersom by telephone. While not ideal, the applicant stressed that this was the only way Ms Hersom could give evidence. Both the applicant and Counsel for the Minister agreed that Ms Hersom’s evidence could be given by telephone.
Ms Hersom was contacted by telephone. She was disconnected part way through cross-examination but the Court was able to reconnect. The Court is satisfied that she was able to provide evidence and engage with the Court. Her evidence is discussed in detail below.
The Court has assessed the following materials in writing these reasons for judgment:
a)the application dated 15 August 2019;
b)an affidavit of the applicant sworn 13 August 2019;
c)a Court Book numbering 104 pages (marked as Exhibit 1);
d)a statutory declaration of Ms Athena Hersom dated 29 November 2019 (marked as Exhibit 2);
e)an affidavit in identical form to the statutory declaration affirmed by Ms Hersom on 20 March 2020;
f)an email from Nicki Nethercot to the applicant dated 2 July 2019 (marked as Exhibit 3);
g)an affidavit of Maria Rizza affirmed 28 January 2020;
h)an outline of written submissions filed by the Minister on 11 February 2020;
i)a further outline of written submissions filed by the Minister on 10 March 2020;
j)an affidavit of Ellen Lucy Goldsworthy Tattersall affirmed 3 April 2020;
k)an email from the applicant to Chambers dated 5 April 2020 (marked as Exhibit 4);
l)an outline of submissions filed by the Minister on 17 June 2020; and
m)an outline of submissions filed by the applicant on 1 July 2020.
Consideration
As noted above, in assessing the applicant’s grounds of review, two questions need to be resolved:
a)the factual question of whether the applicant gave the prison officer on duty the revocation request (i.e., the representations) (the “Factual Issue”); and
b)the legal questions of whether in handing the revocation request to the prison officer this was, in effect, handing the revocation request to the Minister, or whether the prison officer (having been handed the revocation request) had a duty to pass on the revocation request and failed in executing that duty such that it had some effect on the Minister’s duties amounting to jurisdictional error (the “Legal Issues”).
Although not entirely clear, to the extent ground 2 suggests that the Minister’s Department failed to make inquiries from the prison about whether the applicant had submitted the revocation request to a prison officer and had asked for it to be to be mailed within the relevant timeframe, this assertion fails on a factual level. The Minister’s Department did make an inquiry of this sort – an inquiry which, in any event, it was not obliged to do. That occurred on 15 July 2019 (CB 97-100).
The Factual Issue
The applicant alleges that he gave the revocation request to Ms Hersom in her capacity as a prison officer and asked her to mail it to the Minister’s Department. He says that occurred on or around 29 June 2017.
The evidence in Ms Rizza’s affidavit shows that the Minister’s Department’s electronic and physical records do not contain any record of a document having been received by the Minister’s Department from the applicant before 26 July 2017. The evidence also points to a very thorough process for recording incoming correspondence. The Court accepts this evidence. The Minister’s Department never received the revocation request. This, however, is not the end of the issue. The Court must also consider whether the applicant actually did give a revocation request to a prison officer.
The materials before the Court indicate that the Minister’s Department sought to obtain further information from the prison about the alleged 2017 revocation request. Those enquiries revealed that the only item lodged on the applicant’s file at the prison was the acknowledgment letter dated 20 June 2017. The prison’s mail system also indicates that there was no outgoing mail from the applicant to the Minister’s Department (CB 97).
In assessing this issue, much will depend on the credibility and reliability of the applicant’s evidence, the reliability of any “corroborative” evidence provided by Ms Hersom and the documentary evidence before the Court.
At the hearing, the applicant was cross-examined at length. Unfortunately, his responses were often vague and confusing.
His evidence can, however, be summarised as follows:
a)he understood that the revocation request had to be provided to the Minister’s Department within 28 days of receiving the notice;
b)the email that he sent on 29 May 2019 was written by another person at the immigration detention centre. The applicant was present when the email was written but he did not tell the person assisting him “what to write fully”;
c)he accepted that at no time in the correspondence to the Department on 29 May 2019 and 30 May 2019 did he indicate to the Department that he had previously filed a revocation request;
d)he had phoned the NCCC approximately one week prior to the email he sent on 29 May 2019 and asked about the status of his revocation request and was advised that it had not been received. He did not, however, make any reference to this phone call in any of the correspondence he sent to the Department after this call allegedly took place;
e)he “did [his] part” by handing the revocation request to the prison officer. He did not make any further inquiries after that time until 2019 when he was advised that he was going to be deported. He “could have, but did not”;
f)he is not sure what date he handed the revocation request to Ms Hersom but is sure it was “within the time limit”; and
g)the reason that the emails provided to the Department refer to the officer who the applicant handed the document to as a male is because of a typographical error. It may also be because the correspondence was written by another person at the immigration detention centre. He says he explained to this person what had happened and they then wrote out what he had said. He says further that he trusted the person and did not check the email before it was sent.
In relation to the documentary evidence before the Court, the Court notes that on 1 June 2019, the applicant gave the Department the following account of what he says occurred (CB 47-48):
1. On June 20th 2017, I received a package of documents from the NCCC, advising that my Class TY Subclass 444 Special Category (Temporary) visa has been cancelled under s.501 (3A) of the Migration Act 1958 (The Act).
2. This document, invited myself to make representations to the department, in a bid to have that decision revoked.
3. I sought help from Peer support, within the Eastern Goldfields Regional Prison, and began to accumulate documents, to support my request.
4. Once I had gathered all the relevant documentation, and filled out all the documents, sent to me, I posted the package, via the only available means from within the prison system, to your department. (early July 2017)
5. I did not hear anything back, and several weeks ago, I was released after serving my full sentence in custody, and transported to the Yongah Hills Immigration Detention Centre, in Northam, Western Australia.
6. I was spoken to by Australian Border Force, and advised that I did not lodge the revocation request in the specified timelimits.
7. I advised that I was under the impression I had lodged the documents, correctly, and in the specified timeframes, and I was advised to contact the NCCC Department then once I had access to a mobile, contacted the department, and the lady I spoke to advised me that my documents, had not been received by the NCCC Department, in the specified 28-day time limit.
9. It was at this point, I requested another detainee to send an email on my behalf, as I am not fantastic with computers.
10. However, after reading the text of the email, I believe that he misinterpreted my explanation of the matter, the email, dated May 29th 2019, stated, “I believe that the department of home affairs did not receive a signed declaration by both myself and the department of corrections to confirm with receiving the revocation package and notification from the NCCC”
11. I believe that this email was a little misleading as to what my actual question was to the NCCC Department.
12. Subsequesntly, I received an email in response stating that the NCCC Department, received a signed acknowledgement from myself dated june 20th 2017.
13. The Department’s response also stated that they had not received my revocation request by July 26th 2017.
14. After further assistance from other detainees, a phone converation with a migration agent, and research on the internet, I am now of the worrying understanding that the department are stating that they have not recieved my revocation request package, at all, which was sent to your offices in July 2017, and therefore are not assessing my request for revocation, could you please urgently confirm if this is the department’s stance on my matter, or is your position that my revocation request was received but not within the specified 28-day timelimit.
(Without alteration)
On 9 July 2019, the applicant provided further information to the Department as follows (CB 94):
…
In 2017, I was serving a term of imprisonment, I was given served some documents, from the Officers at Kalgoorlie Prison (Eastern Goldfields Regional Prison). Within these documents was a Cancellation notice of my visa. The cancellation was made pursuant to section 501 (3A) of the Migration Act 1958.
I scrambled around, contacting family and freinds and I had all my references, job offer, etc sent into me at Kalgoorlie Prison, I then with the assistance of Peer Support workers at the prison, and also the prison chaplain, I documented everything and formed a package, to present as my response to the cancellation.
I organised with ther Senio Officer on duty, one day, to have the package posted off to the NCCC Department, from memory I believe it was a Melbourne address. Nonetheless, it left my possession into the senior Officers possession and he assured me that it would be placed in the post the following morning, once he had gone through it. (As all post is searched and read in priosn, both in and out)
…
(Without alteration)
Finally, on 23 July 2019, the applicant sent the following email (CB 101):
…
In response to your email below, i can not confirm the exact date it was posted, I recall having all the necessary paperwork filled out within a day of receiving them from the NCCC, with the assistance of Peer Support, at Kalgoorlie prison (EGRP), my references were posted into me from family members and once I had my full file completed, the ‘wing officer’ at the prison, kindly gave me an A4 envelope, which I proceeded to enclose my documents within and once the address was written on the envelope the same officer, took it from me, in the wing office, and organised the postage on my behalf. I would envisage it was lodged in the post to the NCCC’s address no earlier than the 26th June 2017 and no later than the 1st July 2017.
Unfortunately, as I explained to my status resolution officer, at the beginning of this issue, when I arrived at the Immigration Detention Centre, in prison we don not have the liberty of registered post etc. The post, all post leaving the prison is put in the box, or if larger than a normal envelope, is given to the ‘wing officer’ and he, once it has been searched and read by the officers, sent out to the external mail provider for delivery.
If I did have any evidence of the postage I would have happily provided it at the beginning, I’m sorry, but I don’t have any.
…
(Without alteration)
When put to the applicant during cross-examination that he was “making up” what he said in these emails, the applicant denied that this was the case.
The applicant’s case rests in large part on what he says Ms Hersom did or did not do as the prison officer in question.
Ms Hersom’s statutory declaration provides:
• I am an ex-employee of the Corrective Services of Western Australia.
• I can confirm that during 2017 I was stationed at Eastern Goldfields Regional Prison EGRP, commonly known as Kalgoorlie Prison.
• I can confirm that Tamaikoha Hillman-Mclean was a prisoner during my time at EGRP.
• I can confirm that I was aware of Tamaikoha Hillman-Mclean completing papers in order to request a revocation of his visa cancellation.
• I can confirm that Tamaikoha Hillman-Mclean received help doing this by Peer Support and members in his unit.
• I can confirm, although cannot confirm the exact date, it was the end of June 2017 - beginning of July 2017, that Tamaikoha Hillman-Mclean presented myself with a yellow A4 envelope, which contained his completed revocation request, when I was on duty one morning.
• I can confirm that I accepted the unsealed envelope to forward on to the Department of Immigration, the National Character Consideration Centre.
• I can confirm that, as is normal practice when receiving documents to be posted from prisoners, I placed the document in the processing tray to be entered into the outgoing mail system on the computer.
• I can confirm that the document was handed to myself approximately a week or two after prisoner Tamaikoha Hillman-Mclean received it.
• I can confirm I had witnessed Hillman-Mclean completing the document repetitively.
• I can confirm that once I had read all the documents, I sealed the envelope and placed it in the place we officers leave the post items in the officers office
• I can confirm that after I did this I had no further involvement with the envelope and it’s contents
• I can confirm that all of the above is true.
The affidavit affirmed by Ms Hersom on 20 March 2020 is in identical form to the statutory declaration.
Ms Hersom was cross-examined at length.
The Court takes into account that Ms Hersom was giving evidence by telephone. She indicated to the Court (after giving her evidence) that “she was in her car”. This is less than ideal. The Court also takes into account the fact that that the events that Ms Hersom was asked about occurred almost three years ago and she did not have her affidavit before her.
In her oral evidence, Ms Hersom stated that she recalled the applicant receiving a “very big bunch of paperwork” that had something to do with his “deportation”. She also explained that the applicant was filling it out and needed to send it back within a time limit. Ms Hersom further indicated that she remembered having to organise phone calls interstate for the applicant to obtain information. She also received a document from the applicant “in the afternoon” and placed it in “the tray”.
While Ms Hersom did her best to corroborate what was said by the applicant, overall the Court does not find Ms Hersom’s evidence to be of much assistance. The Court does not doubt that Ms Hersom was giving evidence truthfully and to the best of her recollection. Unfortunately, the vagaries in her evidence were such that she failed to address the concerns that the Court has with the applicant’s evidence as a whole.
For the reasons which follow, the Court is satisfied, on the balance of probabilities, that the applicant did not provide the revocation request to Ms Hersom or any other prison officer in 2017.
The Court notes the Minister’s written submissions, which can be summarised as providing as follows:
a)the evidence before the Court is that the Department does not have any record of having received on or before 26 July 2017 a revocation request in relation to the applicant;
b)Ms Hersom in her statutory declaration declares that she is an ex-employee of Corrective Services in Western Australia, and that during 2017 she was stationed at the prison. She declares that in or around the end of June 2017, or the beginning of July 2017, the applicant presented her with an A4 envelope containing his completed revocation request. Ms Hersom declares to having placed the document in the processing tray to be entered into the outgoing mail system on the computer;
c)notwithstanding the applicant’s affidavit evidence and the statutory declaration of Ms Hersom, in his initial email correspondence with the NCCC on 29 May 2019 and 30 May 2019 the applicant made no mention of having tried to send a revocation request to the NCCC in 2017. Indeed, it was not until the NCCC advised the applicant that any revocation request he might make would be deemed invalid that the applicant notified the NCCC that he had tried to make a revocation request back in 2017. Further, the applicant has given no evidence of precisely what documents he prepared, or gathered, for submission to the Minister;
d)the Minister submits that in critical respects Ms Hersom was not a convincing witness;
e)Ms Hersom deposed that she received from the applicant a bundle of documents, including a “completed revocation request” when she was on duty, and that she received the documents from him in the period “end of June 2017 – beginning of July 2017”. Ms Hersom, properly, conceded during cross-examination that she might have received the documents from the applicant in August 2017, or any time when she was working in the unit (Unit 2 of the prison). Ms Hersom was cross-examined on how she was able to recall a small window “end of June 2017 – beginning of July 2017” as the time when she claims to have received the documents from the applicant. It is submitted that the Court should not accept Ms Hersom’s written evidence as to having received the documents in the period “end of June 2017 – beginning of July 2017”. This evidence, it is submitted, should not be accepted as Ms Hersom’s true recollection;
f)Ms Hersom during cross-examination had no recollection of the term “revocation request”, despite having used that term –apparently based on her recollection – in her affidavit. This evidence, it is submitted, should not be accepted as Ms Hersom’s true recollection;
g)Ms Hersom during cross-examination was unable to recall, as she had been when she prepared her statutory declaration and swore her affidavit, that the documents she claimed were given to her by the applicant were to be sent to the “Department of Immigration, National Character Consideration Centre”. The Minister submits that Ms Hersom’s written evidence that the applicant’s documents were to be sent to the “Department of Immigration, National Character Consideration Centre” should not be accepted as Ms Hersom’s true recollection;
h)it is not contended that Ms Hersom was being deliberately untruthful in her written or oral evidence to the Court. Rather, Ms Hersom’s apparent ability to recall specific details of her encounter with the applicant in 2017 as recorded in her affidavit, met with her inability to recall those details under cross-examination only a few months later, places in grave doubt the reliability of Ms Hersom’s recollection; and
i)there is simply no credible evidence that supports the applicant’s assertion that he provided a revocation request and supporting documents to an officer of the prison in late June or early July 2017.
The Court agrees with the Minister in this regard and notes as follows.
The applicant emailed the Minister’s Department on 29 May 2019 asking if the Department had received:
..a signed declaration by both i and department of corrections to confirm with receiving the revocation package and notification from the NCCC
(Without alteration)
Clearly, this is a reference to the acknowledgment of receipt the applicant signed on 20 June 2017.
On 30 May 2019, the NCCC responded to the applicant’s email informing him that, according to its records, the applicant was handed the visa cancellation notification package on 20 June 2017 and had signed the Acknowledgment of Receipt of the Cancellation Notice on 20 June 2017 (which was then received by the Department on 21 June 2017 (CB 44)).
In correspondence to the Minister’s Department dated 30 May 2019 the applicant then asks:
In reply to your email yesterday i am just wanting to know if i can still complete the revocation application and send to the NCCC?.Also from my understanding is it that i need to apply for a request for revocation?.Can you send me a revocation package please…
(Without alteration. Emphasis added)
This email needs to be read in context. The applicant claims that he applied for revocation in 2017. It strikes the Court as “odd” that he would then ask (2 years later) whether he could still apply for revocation and whether he needed to. Further, it is noted that the applicant did not refer to having previously applied for revocation in these first two emails.
When asked in cross-examination to explain why he was asking if he could still apply for revocation and why he was asking for a revocation package on 30 May 2019 when he alleges that he had had done so, the applicant referred to Exhibit 3.
Exhibit 3 was an email sent by a case manager from the Immigration and Citizenship Services Group dated 2 July 2019 which stated as follows:
…
Basically, NCCC have advised the following:
If he still wants to be considered he needs to lodge an application with an explanation as to when he sent it etc, we will then make a determination as to whether there are valid reasons for accepting a late application.
So I would suggest that you get this done as a priority if you’d like to be considered for revocation.
…
(Emphasis added)
The applicant indicated that the reason he sent his email dated 30 May 2019 (which asked that he be sent a “revocation request package”) was because of the “advice” he had been given in Exhibit 3. He says someone at the NCCC told him that if he wanted to still be considered, he should send a revocation request through with an explanation.
Exhibit 3 was not sent to the applicant until 2 July 2019. The email in which the applicant asks about whether he can “still apply” was sent on 30 May 2019 – one month prior to what is detailed in Exhibit 3.
Exhibit 3 is problematic. There is, in fact, no power to extend the time in which an applicant can make a revocation request. The advice purportedly given by the NCCC to the applicant was incorrect: BDS20 v Minister for Immigration [2020] FCA 1176. While unfortunate, there is nothing the Court can do to assist the applicant in this regard.
Here, the applicant signed a letter of acknowledgment indicating that he had received the notice on 20 June 2017. He thus needed to make representations within 28 days. No representations could be considered after this date.
Exhibit 3 does not assist the applicant in relation to his explanation as to why he was asking if he could still apply for revocation. In context, his explanation raises very real concerns about the reliability of the applicant’s evidence in this regard.
The applicant also attempted to explain why no reference had been made in his two initial emails to the Department on 29 May 2019 and 30 May 2019 to the revocation request he now claims to have made in 2017.
The applicant states (in his correspondence to the Department on 1 June 2019) that the correspondence sent on 29 May 2019 and 30 May 2019 had been unclear and was “misunderstood” as he was assisted by another person.
In correspondence dated 1 June 2019, the applicant states (CB 47):
I believe that my email to your offices may have been misunderstood, I wish to send this document, as clarification of my position, and the circumstances regarding my revocation
I am not extremely good with expresing myself, so I have enlisted the help of other detainees in order to put together this document, to further clarify/explain my position.
(Without alteration)
The Court has no reason to doubt that the applicant asked “another person” to assist him with writing emails, including the emails dated on 29 May 2019 and 30 May 2019.
However, the Court does not consider it plausible that, given the significance of the issue, no reference whatsoever would have been made to the 2017 revocation request. In cross-examination the applicant confirmed that in the email dated 29 May 2019, he was specifically referring to the acknowledgment letter and not a previously submitted revocation request.
On the basis of the above, the Court finds that the applicant’s explanation that the revocation request was not referred to in the emails of 29 May 2019 and 30 May 2019 because of a “misunderstanding” lacks credibility.
In cross-examination the applicant also stated that he had not mentioned the revocation request in the relevant emails as he had told the Department that he had already applied for revocation in a telephone conversation “sometime prior to 29 May 2019”.
The Court has serious doubts in this regard.
This was the first time the applicant had suggested before this Court (or, indeed, anywhere else) that he had spoken with someone in the relevant Department by phone prior to 29 May 2019. Had the telephone conversation actually occurred, it would be expected that the applicant would have made some sort of reference to those telephone conversations in the emails detailed above.
The applicant’s evidence about why no reference is made to the 2017 revocation request in the emails of 29 May 2019 and 30 May 2019 lacks credibility and is not accepted. The Court does not accept that any telephone call of the sort alleged occurred.
The Court also notes that the applicant’s letter to the Department on 9 July 2019 states as follows (CB 94):
I organised with ther Senio Officer on duty, one day, to have the package posted off to the NCCC Department, from memory I believe it was a Melbourne address. Nonetheless, it left my possession into the senior Officers possession and he assured me that it would be placed in the post the following morning, once he had gone through it. (As all post is searched and read in priosn, both in and out)
(Without alteration. Emphasis added)
In cross-examination, the applicant explained that he had not, in fact, “forgotten” the name of the officer he gave the revocation request to. Rather, he was, in fact, aware when he sent the correspondence to the Department on 9 July 2019 that Ms Hersom was the prison officer he gave the revocation request to.
When asked why he referred to the officer as a “he” in the above correspondence, the applicant indicated that this was “a typographical error”.
The Court then brought to the applicant’s attention an email sent to the Department on 23 July 2019 in which the male pronoun is again referenced:
… once I had my full file completed, the ‘wing officer’ at the prison, kindly gave me an A4 envelope, which I proceeded to enclose my documents within and once the address was written on the envelope the same officer, took it from me, in the wing office, and organised the postage on my behalf..
…The post, all post leaving the prison is put in the box, or if larger than a normal envelope, is given to the ‘wing officer’ and he, once it has been searched and read by the officers, sent out to the external mail provider for delivery…
(Without alteration. Emphasis added)
When asked to clarify, the applicant again indicated that this too was a typographical error.
Accepting that typographical errors occur and that the applicant may have had assistance in drafting this correspondence, the Court does not accept that the reference to “he” was a simple typographical error or miscommunication. The “error” was repeated three times in two separate pieces of correspondence written weeks apart at a time when the applicant now states that he was fully aware that Ms Hersom was the “officer” he was referring to. When asked why he would not have referred to Ms Hersom by name, he indicated that “he did not know”.
In the Court’s view, these discrepancies undermine the applicant’s evidence about handing the revocation request to Ms Hersom.
The applicant also admitted in cross-examination that it was very important to him that the cancellation be revoked. However, he explained that once he had handed the request to a prison officer, he had “done [his] part”. Relevantly, he admitted that he did not ask the prison officer whether the revocation request had been sent. Nor did he follow-up with that person or anyone in the prison about whether the mail had in fact gone out. Indeed, there does not appear to have been any “follow-up” until 2019.
Given the significance of the revocation request, one would expect that an applicant fearing deportation would have made some effort to “follow-up” and ensure that everything that needed to be done had been done. Insofar as the applicant’s submissions dated 1 July 2020 suggest that he had no ability to “follow-up”, the Court does not accept this suggestion. In cross examination, the applicant admitted that he could have “followed-up” but simply “did not do so”. The Court prefers the applicant’s oral evidence in this regard as it was both candid and frank and given under affirmation.
Unfortunately, Ms Hersom’s did not assist the applicant’s case. Rather, her oral evidence undermined her affidavit evidence and did little to support the applicant’s evidence overall.
Although Ms Hersom gave evidence that she witnessed the applicant repetitively filling out documents and that he gave her an A4 yellow envelope which she placed in a mail tray, Ms Hersom’s oral evidence was less specific and was quite vague when it came to describing the content of the documents she says she was given and when they were given to her.
Ms Hersom’s oral evidence arguably corroborates the applicant’s account that “paperwork” was handed to her and that she placed it in the mail tray. Unfortunately, her oral evidence lacked detail and undermined the reliability of her affidavit evidence. It was vague in critical respects.
For example, when asked about when she received the “paperwork”, Ms Hersom explained that the paperwork was received between July and November (a period of four months). This is not an insignificant period of time and does little to assist the Court when determining whether any “revocation request” was provided within what is a rather strict time period.
Further, Ms Hersom was unable to recall what was actually in the yellow envelope she was handed or indeed where it was being sent to. Her evidence changed as to whether it was sent to New Zealand or Sydney and whether it was sent to a Commission. This was inconsistent with her affidavit in which she said the paperwork was sent to the NCCC in Melbourne.
The Court understands that a significant period of time has expired since Ms Hersom wrote her affidavit and that it might well be difficult to recall specifics. However, the lack of clarity and confidence throughout Ms Hersom’s oral evidence was such that any corroborating impact was lost and any value attached to her affidavit evidence was seriously undermined.
It may well be that Ms Hersom recalls the applicant receiving “paperwork”. It may also be the case that she was asked to post “paperwork” for the applicant at some stage. However, Ms Hersom gave evidence that “relaying messages” was one of her responsibilities generally. Indeed, she explained that she was responsible for up to 140 inmates at the prison at any given time. It is not surprising in this context that Ms Hersom could not state unequivocally when the applicant gave the “paperwork” to her or that the paperwork was, in fact a “revocation request”. Unfortunately, without that information, the Court is left with evidence that does little to support the applicant’s assertions.
The weight that can be attributed to Ms Hersom’s evidence as “corroborative” evidence is limited and, overall, the Court finds the applicant’s evidence to be lacking in credibility and unreliable. The applicant’s lack of credibility, the very limited weight that can be afforded to Ms Hersom’s evidence as corroborative in nature and the documentary evidence before the Court (which establishes that no document was ever received by the NCCC) leads the Court to find, on the balance of probabilities, that the applicant did not “hand” a revocation request to Ms Hersom or any prison officer.
The Court finds that the applicant never provided a revocation request to a prison officer. The first, and only, revocation request made by the applicant was that which was dated 9 July 2019. That request was outside the strict 28 days within which the applicant was required to make the relevant representations.
Accordingly, there was no error in the Minister finding that the applicant had made an invalid revocation request.
The Legal Issues
The Court has found above that the applicant did not hand to the prison officer any revocation request. On that basis, the application must fail.
Nevertheless, for the sake of completeness, the Court will address the following legal issues:
a)had the applicant handed the document to Ms Hersom (a prison officer), does this amount to “giving” the document to the Minister? (“Part 1”); and
b)had the applicant given the document to Ms Hersom (a prison officer) was there a duty on her (as a prison officer) to forward the documents for the applicant? (“Part 2”).
Part 1
The first issue requires the Court to determine whether, had it determined that the applicant here had handed the revocation request to Ms Hersom (noting again that the Court has not found that to be the case here), handing the documents to Ms Hersom within the 28 day period satisfies the representations being made “in accordance with the invitation”.
The argument advanced here is that, as a prison officer is an “officer” under the Act, then “giving” the documents to a prison officer is equivalent to giving documents to the Minister. That is, the Minister is deemed to have, or taken to have by presumption, received the documents when they are handed to a prison officer. Nothing more is required. The pure fact of giving the documents to a prison officer is enough for an individual to have “made representations to the Minister”. The prison officer is a “proxy” for the Minister.
In Forster v Minister for Immigration [2017] FCCA 2678, the Minister conceded that if the applicant in that case was found to have handed the revocation request to a State Correctional Officer, then the representation would have been made within the 28-day period. The Minister conceded that handing the revocation request to the officer would satisfy s.501CA(4)(a) of the Act. However, it was made clear in that case (and emphasised in the appeal of that case) that this is not the general position.
In this case, the Minister makes no such concession. The Minister submits that the handing of a revocation request to a State Correctional Officer is not sufficient to amount to the representation having been given to the Minister within the 28-day period and “in accordance with the invitation”. In effect, the Minister submits that for the applicant to succeed the Court would be required to find that a prison officer was an agent or proxy of the Minister.
A prison officer is an “officer” for the purpose of the Act. “Officer” is defined in s.5(1) of the Act as follows:
…
(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.
A Ministerial authorisation made on 29 August 2000 provided as follows:
… persons included in the following classes of persons [are authorised] to be officers for the purposes of the Act
employees of correctional services or prisons departments, or their equivalent, of all States and Territories who are employed at correctional service or prison facilities
employees of corporations engaged by State or Territory correctional services or prisons departments to provide correctional or prison services for the State or Territory who are employed at correctional service or prison facilities.
In BVA18 v Minister for Immigration (No.2) [2019] FCCA 744 at [42] (“BVA18”) (wherein the Court considered a case of similar factual matrix to the present), the Court stated:
Additionally, no reasoning was advanced in support of the proposition made in passing in addresses that provision of documents to an officer under the Act amounted to provision of those documents to the Minister. In the absence of detailed argument on the point I am not prepared to find that an officer under the Act is some form of administrative agent of the Minister for the purposes of receiving documents.
Here, there is also an absence of detailed argument on this point.
In the Court’s view, and on the basis of the materials before it, the Court finds that handing the revocation request to a prison officer does not amount to giving the revocation request to the Minister.
An “officer” cannot be said to be a “proxy” or “agent” for the Minister. An officer includes persons who are employed by State based entities or private organisations. Some of these people have no connection to the Minister’s Department and, it appears, are not subject to any oversight by the Minister. In the Court’s view, to accept that the giving of a document to any person designated as an “officer” under the Act amounts to making representations to the Minister is too expansive.
The Act and the Migration Regulations 1994 (Cth) (on many occasions) distinguish between an “officer” and the “Minister”. For example, in Public Interest Criterion 4020, an applicant cannot give, or cause to be given, a bogus document to the Minister, an officer, or the Tribunal. Hence, the Minister and an officer are not one and the same. Sections 99 and 103 of the Act are to similar effect. That is, giving something to the Minister is not considered to be giving something to an officer. The same operates in the reverse (i.e., giving something to the officer cannot be taken to have given something to the Minister).
Overall, the Court is satisfied that a prison officer does not stand in the shoes of the Minister such that the Minister is deemed to have received a request once it is accepted that it was handed to that prison officer. The Act does not accommodate that scenario.
On the basis of the above, even if the Court had accepted here that the applicant had handed the relevant revocation request to Ms Hersom, this would not mean that the Minister was deemed to have received them. A prison officer in this context is not a proxy for the Minister. More is required and that “more” did not occur here.
Part 2
The other legal issue that arises here is whether, had the Court accepted that the applicant did in fact hand the relevant documentation to Ms Hersom (noting again that the Court has not found that to be the case here), Ms Hersom had a “duty” to send the documents to the Minister.
The essence of this argument appears to be that where there is a duty (express or implied) on a person (here, Ms Hersom as a “prison officer”) to transmit documents, and if that person fails in that duty for whatever reason there will be a jurisdictional error on the part of the Minister. This is so because that person (here the prison officer) failed to perform an imperative duty which was an express or implied condition of the valid exercise or non-exercise of the discretionary decision-making power in s.501CA(4): Wei v Minister for Immigration & Border Protection [2015] HCA 51 at [33]-[34] (“Wei”).
In Wei, it was found that the failure of the University to upload the academic records when there was a statutory duty to do so under an Act amounted to jurisdictional error. Relevantly, the High Court determined:
32. The requirement of s 19 of the ESOS Act that a registered provider upload onto PRISMS confirmation of enrolment of a person holding a student visa is therefore properly characterised as an imperative duty, in the sense that material non-compliance with the requirement will result in an invalid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act.
33. The “satisfaction” required to found a valid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act is a state of mind. It is a state of mind which must be formed reasonably and on a correct understanding of the law. Equally, it is a state of mind which must be untainted by a material breach of any other express or implied condition of the valid exercise of that decision-making power. The imperative duty imposed on a registered provider by s 19 of the ESOS Act is such a condition.
34. Here, the delegate’s satisfaction that the plaintiff was in breach of the visa condition that he be enrolled in a registered course was formed by a process of fact-finding which was tainted by Macquarie University’s antecedent breach of its duty, under s 19 of the ESOS Act, to upload onto PRISMS confirmation of the plaintiff’s then current enrolment. The delegate reached that satisfaction because the delegate found as a fact that the plaintiff was not enrolled in a registered course. The delegate found that fact on the basis of information contained in PRISMS. That finding was wrong because the information contained in PRISMS was wrong. The information contained in PRISMS was wrong because of Macquarie University’s failure to perform its imperative statutory duty.
In this matter, there was not “a decision” per se. However, it could be argued that, if such a duty arises, the Minister did not consider revoking the visa because the prison officer failed to do what was required of her – which was to ensure that the Minister received the revocation request. In effect, the argument advanced is that an applicant in these circumstances is denied procedural fairness because they were not given a right to be “heard” (and the Minister failed to consider the representations) because of the prison officer’s non-compliance with an alleged duty.
In AMK16 v Assistant Minister for Immigration & Border Protection [2016] FCA 1557 (“AMK16”), the Minister conceded that officers who are properly authorised under the Act have an obligation to provide material to the Minister. The question is: would that reasoning apply here had the Court determined that Ms Hersom, a prison officer, had been handed the revocation request in 2017 by the applicant?
The facts in AMK16 are different to what we see here. In AMK16, the applicant was detained at an immigration detention facility. The applicant was not, at the relevant time, “incarcerated” or serving time for an offence. The applicant was found to have provided documents to an “officer” at the immigration detention facility which were not forwarded to the Minister’s Department. On the basis of the Minister’s concession (that there was an obligation for the immigration detention officer to forward the documents – a concession that appears to have been unique to that case), it was found that the breach of that obligation resulted in a denial of procedural fairness to the applicant.
In BVA18, the applicant argued that providing the revocation request to a state correctional officer similarly enlivened the obligation to forward the documents to the Minister’s Department. The Court disagreed with that argument, finding:
41. Whatever the case, imprisonment is different from immigration detention and most relevantly is not, except in the most technical way, namely by way of definition, a form of immigration detention. It is not obvious that the considerations which applied in AMK16 apply in this case where, at the relevant time, the applicant was serving a term of imprisonment for crimes committed. This important aspect of the matter was not argued in any depth. The applicant’s case was limited to reliance on the fact that prison officers are also defined to be officers under the Act but he did not address the significant difference in the circumstances and duties of prison officers and officers at detention centres. For instance, it has not been shown in this proceeding that state prison officers are susceptible to direction by the Minister, as one must assume is the case with officers in the Minister’s immigration detention centres. Something more than the existence of a status – which has not been shown to be of any material substance – is required in order to find that the relevant state prison officers had a duty to transmit the applicant’s Revocation Request. In this case the Minister did not make a concession of the sort made in AMK16.
…
43. For these reasons I conclude that the applicant has not proved that a breach of an imperative duty occurred if prison officers failed to forward to the Minister or to the Department documents, including the Revocation Request, which the applicant had supplied to them for that purpose.
There is nothing before the Court in this matter that points to any statutory obligation on the part of a prison officer to ensure that a revocation request is actually sent to and received by the Minister.
The Court notes further that in Graham v Minister for Immigration & Border Protection [2018] FCA 1012 (“Graham”), the Court considered whether there was an “implied duty” on places of immigration detention (in that case a State Correctional Facility) to receive detainees upon request.
In Graham, the Federal Court determined (at [97]):
The Minister’s counsel, in oral argument, advanced the further submission that, as a matter of statutory construction, a court should not readily conclude that one polity in a federation is to be taken to be legislating with respect to the officers of a different polity. This principle was said to be separate and discrete from that embodied in the Melbourne Corporation doctrine, albeit that it was recognised in cases which dealt with that doctrine and there was a clear interrelationship between the two principles. The principle was referred to in Austin, where Gaudron, Gummow and Hayne JJ (at 246 [114]) noted that “Sir Owen Dixon, shortly after Melbourne Corporation, said that in a dual political system, such as a federal system, one did not ‘expect to find either government legislating for the other’”, citing In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 529. It was also evident in O’Donoghue at 624 [51] where the Court quoted from the following passage by Westel W Willoughby appearing in The Constitutional Law of the United States (Baker, Voorhis and Company, 1929, 2nd ed) vol 1 at 120:
In general, however, the Federal and State Governments act independently of each other, as regards their executive or administrative services, and the principle is well established that the Federal Government may not impose upon State officials the imperative obligation and burden of executing federal laws, nor, a fortiori, may States obligate Federal officials to execute State laws.
This principle provides a further reason for caution when the Court is invited to hold, in the absence of clear statutory language, that an Act of the Commonwealth Parliament imposes obligations on State officials who are designated as “officers” under that legislation or, for that matter, State officials who may not hold that status, such as managers of prisons.
In Graham, the Federal Court found no such duty could be implied. This Court can see no reason why the issues arising here should be distinguished from that case.
The mere fact that a prison officer arguably has status as an “officer” for the purposes of the Act does not impose an obligation on that officer to carry out tasks in relation to matters arising from the Act. As noted in BVA18, there is nothing to suggest that the Minister has any authority to give directions to prison officers in the same way that directions can be given to officers in detention centres. This is what distinguishes this matter from AMK16. Detention centres and those who work in them have a direct origin and source that derives from the Act and, as such, can be the subject of directions from the Minister: the Act, s.273.
Further, the applicant here was in prison at the relevant time for reasons not related to or connected to the Act. He was imprisoned for committing a crime and found guilty under State authority. The exercise of the powers which allowed for his incarceration was in no way causally connected to the Act.
In this context, it cannot be said that there is an implied duty on the part of prison officers to forward documents to the Department. If the reason for, or source of, the applicant’s incarceration is not in any way related to their immigration status or arising from a breach of the Act it cannot be said that, without more (as noted in BVA18), there is an implied duty on prison officers to forward documents to the Department.
On the basis of the above, and on the facts specific to this case, even had the Court determined that the applicant gave Ms Hersom (as a prison officer) a revocation request at the relevant time, it could not be said that the applicant was denied procedural fairness or any other error arose once it was clear that the Minister had never, in fact, received the revocation request.
The Court agrees with Counsel for the Minister that Ms Hersom (as a prison officer) was under no duty, express or implied, to transmit the documents to the Minister. Unlike the statutory scheme that applies for officers of an immigration detention centre administrated under the Act, no such statutory scheme applies in relation to state corrective services officers and the Act does not extend to state corrective officers.
Conclusion
The Court is satisfied that the applicant did not hand a revocation request to a prison officer in 2017 as he alleges. As the factual premise upon which the alleged jurisdictional error relies is rejected, it follows that the application must be dismissed.
The applicant did not make representations within the period allowed. As such, the Minister has no ability to consider any representations and the decision to cancel his visa stands.
I certify that the preceding one hundred and forty nine (149) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 11 September 2020
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