Parata v Minister for Home Affairs - [2020] FCCA 1582

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARATA v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 1582

Catchwords:
MIGRATION – Application for judicial review – Notice of Decision – last known address – decision Notice emailed to corrections centre email address – writs issued.

Legislation:

Bankruptcy Regulations 1996 (Cth), reg.16.01

Migration Act 1958 (Cth), ss.66, 116, 127(2), 347, 412(1)(a), and 501

Migration Legislation Amendment Act (No. 1) 1998
Migration Regulations 1994 (Cth), regs.2.55, 4.10(1)(b) and 4.31(2)

Cases cited:

DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

Yu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 912
Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327
CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437
SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79
Drake v Stanton [1999] FCA 1635
Benissa v Minister for Immigration and Border Protection [2016] FCA 76
Dahi v Minister for Home Affairs [2019] FCA 784
Grey v Minister for Immigration & Anor [2018] FCCA 1564

Applicant:

KARL WILLIAM PARATA

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 23 of 2019

Judgment of:

Judge Riethmuller

Hearing date:

6 May 2020

Date of Last Submission:

22 May 2020

Delivered at:

Melbourne

Delivered on:

17 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Guo

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Tran

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

THE COURT DECLARES THAT:

The Applicant has not been notified under s.127 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister made 20 September 2018.

THE COURT ORDERS THAT:

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 12 November 2018.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 23 of 2019

KARL WILLIAM PARATA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant came to Australia in 1993 when he was 7 years of age. He remained on a Special Category Visa, never obtaining residency or citizenship.
Following incidents involving his ex-partner, on 10 September 2018, a delegate of the Minister gave notice to the applicant of an intention to consider cancelling his visa under s.116 of the Migration Act1958 (Cth) (‘the Act’). The Notice was sent by email to the Melbourne Assessment Prison (at MAP.records@justice.vic.gov.au) where the applicant was on remand. The applicant responded in a document dated 13 September, which was sent by fax on 17 September 2018, arguing that the visa should not be cancelled: see Court Book (‘CB’) pp.43 to 44. The delegate cancelled his visa on 20 September 2018.
Notice of the cancelation of the visa was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 1582
Decision Date: 17 June 2020

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Riethmuller considered an application for judicial review brought by the applicant, Mr Parata, against the Minister for Home Affairs. The dispute concerned the validity of a notice of decision to cancel Mr Parata's visa, which had been emailed to a corrections centre email address. Mr Parata argued that this notification did not comply with the requirements of section 127(2)(b) or (c) of the Migration Act 1958 (Cth).

The court was required to determine whether the notification of the visa cancellation decision satisfied the specific requirements of section 127(2) of the Act. Specifically, the court had to consider whether the notice adequately stated whether the decision was reviewable under Part 5 or Part 7 of the Act, as required by section 127(2)(b), and whether it provided the necessary details for review if a right to review existed, as stipulated in section 127(2)(c).

Judge Riethmuller reasoned that section 127(2)(b) of the Act, as amended in 1998, required the notice to state "whether" the decision was reviewable under Part 5 or Part 7, rather than merely "if" it was reviewable. The court explained that the use of "whether" mandates a selection from the listed parts, indicating under which specific part the review could be sought. The covering letter accompanying the decision merely stated that the applicant "may make an application for merits review... with the Administrative Appeals Tribunal," without specifying whether this review fell under Part 5 or Part 7. This wording was found to be insufficient to meet the statutory requirement.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant argues that the Notification did not comply with the requirements of s.127(2)(b) or (c) of the Act. The section provides:127 Notification of decision (1) When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.(2) Notification of a decision to cancel a visa must:(a) specify the ground for the cancellation; and(b) state whether the decision is reviewable under Part 5 or 7; and(c) if the former visa holder has a right to have the decision reviewed under Part 5 or 7—state:(i) that the decision can be reviewed; and(ii) the time in which the application for review may be made; and(iii) who can apply for the review; and(iv) where the application for review can be made.(3) Failure to give notification of a decision does not affect the validity of the decision. The covering letter sent to the applicant, enclosing the decision, states (at CB p.49):You may make an application for merits review of this cancellation decision with the Administrative Appeals Tribunal (AAT). The wording used does not identify which Part of the Act provides for review of the decision. Some history of the provisions explains the nuance of the arguments. Section 127(2)(b) initially required the Notice to ‘state if the decision is reviewable under Part 5 or 7’. It was amended in 1998 (by the Migration Legislation Amendment Act (No. 1) 1998) to change the word ‘if’ to the word ‘whether’. Rather unhelpfully, the explanatory memorandum merely restates the provision (as is unfortunately not unusual) saying:165. This item amends paragraph 127(2)(b) to correct an ambiguity - it will ensure that notification of a decision to cancel a visa (under Subdivision E of Division 3) states whether a decision is reviewable under Part 5 or 7 rather than if it is reviewable’ (emphasis as in original). Obviously the difference in grammatical effect between ‘if’ and ‘whether’ was viewed as significant to Parliament when enacting the amendment. The nuanced difference (commonly overlooked in everyday language) is that the word ‘if’ simply requires consideration of the fulfilment of the following clause: Is the decision reviewable under either Part 5 or Part 7? The use of ‘whether’ demands a selection from the following list: under which Part (5 or 7) can the decision be reviewed? For example, in the Oxford English Dictionary, the following phrases indicate a similar use:a1616 W. Shakespeare King John (1623) i. i. 134 Whether hadst thou rather be a Faulconbridge,..Or the reputed sonne of Cordelion? 1713 G. Berkeley Three Dialogues Hylas & Philonous i. 5 Whether does Doubting consist in embracing the Affirmative or Negative Side of a Question?a1822 P. B. Shelley Ion in Prose Wks. (1888) II. 115 Whether do you demonstrate these things better in Homer or Hesiod? An example phrase from the definition of ‘if’ shows the differing meaning: ‘1608 W. Shakespeare xxiv. 258 “If that her breath will mist or staine the stone, Why then she liues.”’

Ratio Decidendi

Legal Principle Established

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