Minister for Immigration and Border Protection v EFX17

The High Court of Australia considered an appeal by the Minister for Immigration and Border Protection against a decision of the Full Court of the Federal Court concerning the cancellation of the respondent's, EFX17, protection visa. The dispute arose from the delegate of the Minister cancelling EFX17's visa under s 501(3A) of the *Migration Act 1958* (Cth) and subsequently sending a letter and enclosures to EFX17, which explained the decision and invited representations about its revocation. EFX17 contended that the Minister had not complied with the duties imposed by s 501CA(3) of the Act, specifically regarding the "giving" of notice and particulars and the "invitation" to make representations.

The legal issues before the High Court were whether the Minister had complied with the statutory duty to "give" written notice and particulars and to "invite" representations under s 501CA(3) of the *Migration Act*. This involved determining whether the respondent's capacity to understand the written notice and particulars was relevant to the performance of these duties, whether the Minister or delegate was required personally to perform these duties, and whether the invitation to make representations was deficient because it did not specify a period within which representations were required, contrary to the *Migration Regulations 1994* (Cth).

The High Court, by majority, upheld the Minister's grounds of appeal concerning the delegate's personal performance of duties and the relevance of the respondent's capacity to understand the notice. However, the appeal was dismissed because the invitation to make representations did not provide a way to ascertain the period within which representations were required to be made, as mandated by the *Migration Regulations*. The Court reasoned that while delegates are not required to personally perform all administrative tasks, the duty to "give" notice and "invite" representations under s 501CA(3) requires more than mere service of documents, implying an irreducible minimum standard of ensuring the recipient is informed. Crucially, the Court found that the failure to specify the timeframe for making representations in accordance with the regulations rendered the invitation invalid.