Minister for Immigration and Border Protection v EFX17

[2020] HCATrans 93

[2020] HCATrans 093

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B4 of 2020

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant

and

EFX17

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 JULY 2020, AT 11.30 AM

Copyright in the High Court of Australia

MR G.T. JOHNSON, SC:   May it please your Honours, I appear with MR B.D. KAPLAN for the applicant.  (instructed by Clayton Utz)

MS A.M. MITCHELMORE, SC:   If the Court pleases, I appear with my learned friend, MR D.K. FULLER, for the respondent.  (instructed by Prisoners’ Legal Service Inc)

BELL J:   Thank you.  Ms Mitchelmore, perhaps while you are at the lectern, I might indicate that Justice Gageler and I have had the opportunity to read the submissions in the application and we think we might be assisted by hearing from you first.

MS MITCHELMORE:   Certainly.  Your Honours, the outcome of the Full Court’s decision in this case was that the respondent, who is in criminal custody and has been diagnosed with schizophrenia, who speaks limited English and cannot read or write in English, and who is illiterate in his native tongue, is to be given an opportunity to make submissions, with the assistance of the Prisoners’ Legal Service, as to why the mandatory cancellation of his protection visa should be revoked.

In our submission, the case was decided by reference to the particular circumstances of the respondent, who was handed 86 pages of material that he made clear he could not understand at the time of its receipt.  Justice Greenwood highlighted on a number of occasions that he was answering a question that arose in the very specific and particular circumstances of this respondent, and Justice Rares’ reasons were also focused on the circumstances of this case.

In our submission, the majority’s decision was consistent with the text of section 501CA(3) of the Act read in context and involved the application of orthodox principles of statutory construction.  Justice Greenwood, at paragraph 87 of the judgment – that is at page 145 of the application book – described section 501(3A) and section 501CA viewed together as constituting an integrated statutory scheme.  One feature of that scheme is that pursuant to section 501(5) of the Act:

The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply ‑ ‑ ‑

GAGELER J:   Ms Mitchelmore.

MS MITCHELMORE:   Yes, your Honour.

GAGELER J:   You might ultimately be right, but what do we do about paragraph 233 within Justice Logan’s judgment – the extract from WACB?

MS MITCHELMORE:   Your Honour, in relation to WACB, we say that that case is distinguishable.  We have said something about that in our written submissions at paragraph 21.  At paragraph 10 of the reasons in WACB, which is in the reasons of Chief Justice Gleeson and Justices McHugh, Gummow and Hayne, their Honours said that the provision in question in that case picked up the provisions which were:

a “code” for the delivery, or notification, of decisions by the RRT to the applicant and the Secretary –

In paragraph 15 their Honours observed, having regard to the legislative history, what was required to constitute notification of the decision under section 478(1)(b) was fulfilment of the code, and they were not required to go further.

We submit that in this case the language, context, and purpose of section 501(CA)(3) raises different considerations and, as I was going to say, one of those features is, of course, that section 501(5) of the Act provides that the code of procedure in Subdivision AB of Division 3 of Part 2 does not apply, so the notification provisions - sections 494B, et cetera, do not apply. 

But another feature is that the class of persons to whom the scheme applies, being the focus of the Full Court’s decision, is necessarily confined by reference to the criteria for cancellation, a defining characteristic of which is fulltime imprisonment in a custodial institution, and following mandatory cancellation, section 501CA enlivens and facilitates an opportunity to make representations on a matter of critical significance to the person concerned by way of response to ministerial action in relation to which he or she had no prior say and of which he or she has had no notice.

That provision, 501CA, is the mechanism by which a person in the position of someone like the respondent is first given notice of the visa cancellation decision and particulars of relevant information, but secondly and importantly given an invitation to be heard against the cancellation of their visa and, significantly, that opportunity is given by reference to the invitation in section 501CA(3)(b) and it must be taken up in a manner that is in accordance with the invitation. 

Your Honours will see that in section 501CA(4).  If no representations are made or if the representations made are not in accordance with the invitation, the Minister cannot revisit the original decision under section 501CA and the person is liable to removal or indefinite detention.

BELL J:   Implicit in the scheme you say is that unlike the provision considered in WACB, the requirement that the Minister consider – give the person in a way that the Minister considers appropriate in the circumstances, incorporates that there may be a distinction between persons who are illiterate and who are subject to a cancellation decision, and others.

MS MITCHELMORE:   Yes, your Honour, and also ‑ ‑ ‑

BELL J:   You get that out of a requirement in (3)(a), the consideration of appropriateness in the circumstances.

MS MITCHELMORE:   Yes, that is right.  It may be illiteracy or a language issue but it may also be – as was the case here – issues regarding the prisoner’s mental state.  We say that having regard to the particular statutory scheme here and the significance of section 501CA in providing the only opportunity by which someone whose visa is to be cancelled has an opportunity to – not, is to be cancelled, has been cancelled, mandatorily cancelled – has an opportunity to speak as to why that should be revoked, there are, in our submission, additional considerations to those which the High Court was considering in WACB, which was a provision that dealt only with notification and did not have those additional words that section 501CA(3) has, that it has to be in a way that the Minister considers appropriate in the circumstances.

BELL J:   Ms Mitchelmore, the Minister contends, amongst other things, that the construction for which you advocate would have very significant practical consequences.  In light of that and in light of the difference of opinion in the Full Court why is it not an appropriate matter for the grant of special leave?

MS MITCHELMORE:   Your Honours, what I think I can say to that is simply that, in our submission, it cannot be assumed from the Full Court’s reasoning that the Minister will be under any significant burden in terms of making inquiries or arrangements in relation to all persons whose visas are subject to mandatory cancellation. 

The Minister’s submission by contrast is that it is unnecessary for him to have regard to any matters affecting a recipient’s capacity.  In our submission, that reduces the obligation under section 501CA(3) to a requirement to give documents without bringing to account the purpose of that occurring being not only for notification but also for invitational purposes and the manner in which section 501CA(3) dovetails with subsection (4) in terms of the significance of understanding the terms of the invitation and how to respond to it. 

Some people to whom such a notice and invitation is given may have no mental health or language or literacy issues and be able to comprehend a notice sent in the terms that were provided to the respondent.  But the effect of the Full Court’s decision is that where a person in that class has issues which affect their capacity to understand why their visa has been cancelled and what they can do to revoke it they receive some assistance which, of course, will necessarily be circumscribed by the custodial context. 

So, for those reasons, your Honours, that is why we say that insofar as the construction that has been adopted by the Full Court it is not one that is attended by sufficient doubt or has practical implications that would warrant the grant of special leave.  I am not sure I can assist your Honours any further in relation to those matters.  If the Court pleases.

BELL J:   Thank you, Ms Mitchelmore.  The Court will briefly adjourn in order to consider the future conduct of the application.

AT 11.42 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.44 AM:

BELL J:   Mr Johnson, I should indicate that the Court is minded to grant special leave in this matter.  May I just raise proposed ground 5?  Justice Gageler and I are not inclined to extend the leave to that proposed ground.  Is there anything you would wish to say about it?

MR JOHNSON:   Ground 5 is placed there as an alternative to ground 4 which is basically concerned with the section 497(2) argument.  So, ground 5 is in that context and in relation to ground 5, I might add this, your Honours.  Any lack of delegation may be immaterial if the Minister is correct about the interpretation of 501CA because the respondent received the notice and the invitation anyway.  There is no doubt that he actually was given it in the sense of physically being given. 

On the other hand, if the Minister is incorrect and the majority were right about their construction of section 501CA and what they saw as a requirement in relation to literacy and capacity to understand, then the delegation point might fall away.  So, there are a number of ways maybe in which that question of materiality might arise.

BELL J:   Mr Johnson, we are not persuaded - Justice Gageler and I are not inclined to favour extending the grant to ground 5.  Do you press it?

MR JOHNSON:   As the Court pleases.

BELL J:   Very well.  I should note that in paragraph 39 there is the undertaking that the Minister does not seek to disturb the Full Court’s orders as to costs in that court and in the court below and agrees to pay the respondent’s costs in this Court.

MR JOHNSON:   Yes, that is correct, your Honour.

BELL J:   Very well.  On that understanding, there will be a grant of special leave in this matter.  The grant is confined to proposed grounds 1 to 4 inclusive.  What is the likely estimate?

MR JOHNSON:   We think half a day, your Honour.

BELL J:   Yes.  I take it, Ms Mitchelmore, you agree with that?

MR JOHNSON:   Yes.  Ms Mitchelmore and I have spoken about it.

BELL J:   Very well.  I invite your instructors to collect from the Registry the directions concerning the filing of submissions and keep to the timetable.  The Court will now adjourn to 12.30 pm.

AT 11.48 AM THE MATTER WAS ADJOURNED