Plaintiff M19a/2024 & Ors v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] HCATrans 56
[2024] HCATrans 056
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M19 of 2024
B e t w e e n -
PLAINTIFF M19A/2024
First Plaintiff
PLAINTIFF M19B/2024
Second Plaintiff
PLAINTIFF M19C/2024 (BY THEIR LITIGATION GUARDIAN PLAINTIFF M19B/2024)
Third Plaintiff
PLAINTIFF M19D/2024 (BY THEIR LITIGATION GUARDIAN PLAINTIFF M19B/2024)
Fourth Plaintiff
PLAINTIFF M19E/2024 (BY THEIR LITIGATION GUARDIAN PLAINTIFF M19B/2024)
Fifth Plaintiff
and
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Defendant
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 28 AUGUST 2024, AT 9.28 AM
Copyright in the High Court of Australia
____________________
MS G.A. COSTELLO, KC: May it please the Court, I appear with MS S.M.C. FINEGAN for the plaintiffs. (instructed by Asylum Seeker Resource Centre)
MR G.A. HILL, SC: Your Honour, I appear with MR N.D.J. SWAN for the defendant. (instructed by Australian Government Solicitor)
HER HONOUR: Thank you. I just thought I might clarify the papers that are necessary for me to deal with this matter. There is an amended application for constitutional or other writ filed 21 July, a response to that filed 14 August, and an amended reply of 21 August. Then I have four affidavits: the affidavit of the second plaintiff sworn 8 February, the Milton affidavit affirmed 16 February, and then two affidavits sworn by Ms Stone of 27 March 2024 and 12 August. Then finally, a joint book of authorities. Am I missing anything?
MS COSTELLO: No, the only thing is I am not sure about that first date, I will just need to check that. In terms of the first one being ‑ ‑ ‑
HER HONOUR: Your amended application for constitutional or other writ.
MS COSTELLO: No, just the affidavit of the second plaintiff. It was filed on 27 February, that is the affidavit of the second plaintiff, your Honour, and the affidavit of Ms Milton was filed on 27 February.
HER HONOUR: I took the sworn dates. I am sorry.
MS COSTELLO: Yes, your Honour.
MR HILL: Your Honour, just while we are trying to put all papers together ‑ ‑ ‑
HER HONOUR: Yes, please.
MR HILL: ‑ ‑ ‑ we had a supplementary bundle of authorities, which is some historic provisions of the Migration Act which we hope will explain a point that will become clearer when I address the Court. My learned friend has a copy. Would your Honour like to have it now or as I come to it?
HER HONOUR: You can choose.
MR HILL: I will hand it to your Honour when it becomes relevant.
MS COSTELLO: Now, your Honour, not to create any more paperwork but only to provide a structure for my oral submissions, we have provided the Court with a short outline of oral submissions, if it is of assistance.
HER HONOUR: I have read that, thank you. We might come to the order in which we might address the grounds. It seems to me, on reflection, looking at it, that some of the later grounds really should come first.
MS COSTELLO: Yes, your Honour so in ‑ ‑ ‑
HER HONOUR: It is a matter for you, but in terms of resolution it would seem to me that some of the earlier grounds about notification and service really come chronologically first before you even get to the cancellation decision and whether or not it is reasonable.
MS COSTELLO: Yes, your Honour. You will see that the way that we propose to address the Court is that – in respect of ground 2 – to make submissions about ground 2, which is the breach of section 120, and ground 5, which is the notification error, in one block – as they do perhaps chronologically belong together – the first ground, which is the failure to consider the statutory consequence of cancellation, as you say, your Honour, I respectfully adopt your observation that chronologically it could after and it certainly could be addressed later. If I could perhaps start with ground 2, and if it was to be chronological it would be ground 2 then ground 4, then ground 1 – ground 2, 5 and then 3.
HER HONOUR: It is a matter for you, it just seemed to me that there was a logic to them.
MS COSTELLO: Yes, your Honour. In terms of that logic, I will start then with ground 2 and ground 5. Ground 2, your Honour, is in respect of a breach of section 120. As your Honour is well familiar, the analogous grounds of section 424A and 359A in Part 7 and Part 5 have been held to be jurisdictional errors by analogy with the well‑known case of SAAP. There were matters that fell within the usual requirements of section 120 as being relevant information requiring disclosure. That is not controversial in this case.
The controversy arises as to whether the notice required to be given under section 120 was given or not. In circumstances where the Minister’s contention is that the matters that had to be disclosed as relevant information were disclosed in the notification under 119, which then leads your Honour to a consideration as to whether that notification under section 119 was defective.
Now, for seven reasons – which you can see there in paragraph 6 of the oral outline – we submit that the notification under section 119 was defective. Looking at section 119 as it was at the time of notification, having been changed by legislation subsequently to the notice, the section 119(2) stated that:
The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
We submit that the delegate misconceived the notification power, thinking that regulation 2.55 was prescribed. We say regulation 2.55 was not prescribed. It was not prescribed because section 494A of the Act pertained to notification and section 119(3) of the Act also pertained to notification orally. So, it cannot be that notification under section 119 had to be done under regulation 2.55 when a different section of the Act, rather than the regulations, provided for another kind of notification.
HER HONOUR: Just so I understand the argument, you accept – I thought – that regulation 2.55 provided a prescribed method. It existed, let us put it neutrally.
MS COSTELLO: Yes, your Honour.
HER HONOUR: So, there is a prescribed method, you just say it is not a prescribed method which is a complete answer to the notification requirement. Is that the way you put it?
MS COSTELLO: The way it is put is that, under section 119(2), because it says:
The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
What that says is that calls for a singular prescribed way. So, if there is no singular prescribed way, in circumstances where “prescribed” in the definition section means “prescribed by the regulations” then the Minister must reach a state of satisfaction as to what the Minister considers to be appropriate for notification in the given case. If section 494A was not in the Migration Act at the time then it might not be a problem, but here you have regulation 2.55 purporting to think – you know, the regulation thinks it covers the field but in fact section 494A provides something irreconcilable with that.
HER HONOUR: And what is the irreconcilable aspect of it?
MS COSTELLO: Regulation 2.55(3) said that:
the Minister must give the document in one of the following ways –
But section 494A of the Act said that:
(1) If:
. . .
(b)the provision does not state that the document must be given:
(i)by one of the methods specified in section 494B; or
(ii)by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate –
Including methods in 494.
HER HONOUR: Can you just explain to me why 2.55 is not caught by that first limb of that section?
MS COSTELLO: Sorry, the first limb of which section, your Honour?
HER HONOUR: Section 494, which says there is a prescribed way, and the prescribed way is multiple ways or different ways it might be done, as I read regulation 2.55.
MS COSTELLO: So, 494A provides some coverage guidance in 494A(1)(b), and at the end of reading (i) and (ii) of (b) we reach the conclusion that 494A tells us that:
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
The issue here is the state of satisfaction that the delegate had to reach in deciding how to notify, and if the delegate is – which we submit your Honour ought to find – just saying, I am going to notify under regulation 2.55, the requisite state of satisfaction, which is how does the Minister consider that it is appropriate to notify the person in this case, has not been reached. There is a difference in the notification provisions in 494A and regulation 2.55 in respect of whether it is the last known address or the last known address or the last known address given to the Minister for the purpose of correspondence.
There are differences between the notification content of 2.55 and 494A, and there is a qualitative difference in the state of satisfaction required if the delegate properly understands the task, which gave the delegate more freedom to consider how to notify than the delegate may have realised if the delegate was merely just applying 2.55. What we say happened here is that the delegate proceeded as if the prescribed way was 2.55, and that was an error because the presence of 494A meant that 2.55 was not the prescribed way.
HER HONOUR: I am left with a question of construction at the intersection between 494A and 494B and regulation 2.55 read with 119 and 120.
MS COSTELLO: Yes, your Honour. The last constructional task that arises under 119 is just to see also that 119(3) says:
The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
So, there is another way that takes the manner of notification beyond the narrow pathway of 2.55.
HER HONOUR: Can I raise three questions with you about 119 that shall answer my concerns. Section 119 says:
the Minister must notify the holder –
by giving particulars and inviting them to do certain things. Subsection (2) says:
The holder is to be notified in the prescribed way –
And, as I think you accept, “prescribed way” is defined in the Act.
MS COSTELLO: “Prescribed” is defined in the Act, your Honour, yes.
HER HONOUR: Yes.
MS COSTELLO: Yes, your Honour?
HER HONOUR: And “prescribed” as defined tells us to go somewhere to look for it. So, section 5 just says:
prescribed by the regulations.
MS COSTELLO: Yes, your Honour.
HER HONOUR: So, I go to the regulations, and I have regulation 2.55. Why am I not in 494B?
MS COSTELLO: Why are you not in ‑ ‑ ‑
HER HONOUR: In section 494B, which tells me that:
(1)For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister . . . and
(b)state that the Minister must do so by one of the methods . . . the methods are as follows.
And it tells you to follow the method.
MS COSTELLO: Because the methods are not the same in the 494 area of the Act and 2.55, because there is a distinction between the last known address in those two places.
HER HONOUR: I see. Thank you.
MS COSTELLO: And also that, whilst 2.55 might deem notification given in a certain way to have been effected within a certain timeframe, for example, that is a different question to whether the person notifying understood their task and the decisional freedom and discretion they had in choosing how to notify. There is a case which was helpfully cited in our learned friend’s submissions where the provisions were considered, and that is EVE21. In EVE21 (2023) 298 FCR 57, at page 69, Justice Perram, with whom Justices Rofe and Feutrill agreed, observed at paragraph 48 that:
Regulation 2.55(3) does not, in my view, purport to prevent the power in s 494A(1) being exercised; even if it was ambiguous in that regard, it would not be construed that way because of s 13(1)(c) of the Legislation Act and, even if, properly construed, it did purport to prevent the power in s 494A(1) being exercised it would be invalid and would be read down under s 13(2) . . . Consequently, I do not accept that reg 2.55(3) prevents the Minister from exercising the power in 494A(1).
At 49:
It will follow from the foregoing discussion that I would accept that there are circumstances in which reg 2.55(3)(c) may be invalid.
And cites section 13 of the Legislation Act. Clearly, at a legislative level, the difficulty in reconciling these two provisions – the Act and the regulations – was recognised and the conflicts were addressed in legislation, and the joint bundle of authorities provides for you the legislative documents that show you the changes to both the regulations and the Act. If your Honour has the joint book of authorities, if you look at page 23 of the bundle, you are in the Migration Amendment (Giving Documents and Other Measures) Act, and you can see that sections 119(2) and (3) were entirely repealed and substituted for the words:
The notification under subsection (1) must be given in the prescribed way.
And then at page 25 ‑ ‑ ‑
HER HONOUR: These are amendments post‑dated.
MS COSTELLO: Yes, they did.
HER HONOUR: What is my authority to take into account these amendments after the relevant facts? Is it a matter of statutory construction?
MS COSTELLO: I am not able to assist your Honour with authority to take it into account. If your Honour is not assisted by the submission ‑ ‑ ‑
HER HONOUR: It is not that I am not assisted, I just want to know that what I am doing is right. It is unusual in a question of statutory construction at a particular point in time to look at subsequent amendments unless it is confirmatory of either a decision that has been made or someone can tie it to something which explains it, otherwise one looks at the question of construction at the time of relevant events.
MS COSTELLO: Yes, your Honour. Indeed, it is appropriate for your Honour, of course correctly, to look at the legislation at the time that the notification was given. What I was seeking to do was to say there is a case – EVE21 – which raised the issue of the invalidity of 2.55, given this difficulty with 494A and the fact that it is a regulation seeking to trump an Act, and then the context of this case is that that very irreconcilable issue was addressed by a legislative amendment which removed from section 494A any role in notification on cancellation decisions and made clear that the prescribed way in section 119 is the regulation.
I would say it is just a way of conceptualising that there was a difficulty with these provisions, which means that it made it very difficult for the delegate to get the task right, and that difficulty has been subsequently resolved through legislative amendment targeted to removing this clash between the regulation and the legislation, which, in our submission, indicates a parallel argument that gives force to our argument, which is to say there is an error here in treating regulation 2.55 as the prescribed way. It is such an error that, indeed, Parliament sought to fix it. The explanatory memoranda around the changes to 119 and 494A describe it as a clarification, but we submit that it is ‑ ‑ ‑
HER HONOUR: These are the documents under tabs 5 and 6 of the joint book of authorities?
MS COSTELLO: Yes. You can see that the legislative changes are in tabs 3 and 4, and then the explanatory memoranda and statement about the changes are in 5 and 6.
HER HONOUR: Which parts of 5 and 6 do you rely upon?
MS COSTELLO: Pages 41, 47 and 50, your Honour.
HER HONOUR: Take me to the passages you say assist you, please.
MS COSTELLO: Yes, your Honour. I had taken you to 23 and 25 of tab 3. Then at tab 5, which starts at page 40, at page 41 you can see that in the Migration Amendment (Giving Documents and Other Measures) Bill 2023, about three‑quarters of the way down the page ‑ ‑ ‑
HER HONOUR: This is the explanatory memorandum to the Bill?
MS COSTELLO: Yes, your Honour. There is a heading:
Giving documents for character‑related cancellation decisions and actions –
And it describes that:
The amendments made to the Migration Act by the Bill create a more transparent and coherent framework for notifications of cancellation‑related decisions and actions. Together they:
·require all cancellation‑related notifications to be given in writing; and –
Your Honour, I pause to say section 119(3) that enabled that oral versions removed:
·enable the regulations to specify the method of giving documents.
And I would say, in contrast, there was an inability for the regulations to specify the method of giving documents because of the conflict with 494A(1). In the next paragraph:
In particular, subsection 494A(1) of the Migration Act provides that if a provision of the Migration Act or the Regulations requires or permits the Minister to give a document to a person, and the provision does not state that the document must be given by a method specified in section 494B or by a method prescribed for the purposes of giving a document to a person in immigration detention, the Minister may give the document by any method that they consider appropriate. The amendments in the Bill clarify that subsection 494A(1) does not apply to cancellation‑related documents, which are intended to be covered by the method(s) prescribed by the Regulations.
HER HONOUR: I know in the response, at paragraph 17, the Minister relies upon the opening paragraph of that explanatory memorandum, where he identifies that it was to improve and clarify. You take issue with that, I assume.
MS COSTELLO: Yes, that is something that one might describe as a self‑serving statement, in a sense, in the explanatory memorandum seeking to not concede that there is a flaw in the previous law but to fix it without conceding the problem. It is a matter of statutory construction for your Honour as to how these provisions operated at the time of the notice. At page 47, at paragraph 20, there is a statement:
The intention of this substitution is to ensure that the Minister must notify the holder using the method prescribed by the regulations.
So, it is described as a clarification, but, in our submission, what those legislative and regulatory changes did was to change the law so that there was no longer the discretionary and decisional freedom to the Minister to choose how to notify.
In the facts of this case where you have a long‑standing protection visa and then only an address given in the context of a citizenship application rather than in respect of the visa itself, the choice to notify to the address provided to the Minister for the purposes of the citizenship application, as opposed to the original details provided for the visa application, and the choice to only send this by registered post to the first plaintiff and not take other, perhaps, appropriate steps such as finding out the address through Medicare or Centrelink reinforces what went wrong here.
If the person notifying had realised their job was to decide, well, what is the appropriate way to notify in this case, then factors such as this is a protection visa that they have held for a number of years and we have not had an updated address in that context in circumstances where we now know there is this other address provided for a different process, it could have been a different method of notification had the decision‑maker realised that they had to consider what was the appropriate form of notification. Aside from that, the formation of the state of mind ‑ ‑ ‑
HER HONOUR: Before you get to that formation, I think I may be assisted by at least some assessment or description of the relevant facts. As I read them, yes, notification was sent, consistent with the process set out in regulation 2.55, and I have heard your arguments about that, but I do not know that it is a fair summation of the facts to say that they took no further steps, because as I read the Milton affidavit at 21, there was at least some attempts made to call mobile phones. So, I would be assisted, I think, by at least some assessment or submissions about those facts.
MS COSTELLO: Yes, your Honour.
HER HONOUR: Only at a time convenient to you, Ms Costello.
MS COSTELLO: That is perfectly fine.
HER HONOUR: I should say that there were two groups of phone calls made, I think, as I read the affidavit.
MS COSTELLO: Yes, your Honour. Looking at the affidavit of Michelle Stone ‑ ‑ ‑
HER HONOUR: Which one, the first or the second?
MS COSTELLO: The first, 3 April 2024. If you look at page 69 of the exhibits, you can see – I will not say her name, given the pseudonym – on page 69, this is the application for review of the citizenship refusal by the second plaintiff, the wife, and you can see that there are two phone numbers given, and the second one ends in “789”, and that is at December 2016. Then, if you would look at page 47 in the same exhibit, you can see an application for review of decision – that is, the citizenship decision – by the first plaintiff, the husband, and you can see that the mobile phone number ends in “789”, and that is December 2016.
The document I think your Honour was referring to a few moments ago is in the affidavit of Ms Milton, which is affirmed on 16 February 2024. At page 22 of the bundle, we can see a case note, and you can see that on 30 October there is a phone call to a phone number which is ending in “445”, and then on 30 October, 10 minutes later, there is a phone call to a phone number ending in “051”. Then, on 15 November ‑ ‑ ‑
HER HONOUR: You accept that “051” is the telephone number of the second plaintiff?
MS COSTELLO: Just to go back to that other thing that I ‑ ‑ ‑
HER HONOUR: If you went back to page 69 of the first Stone affidavit, those numbers, as I read it, match.
MS COSTELLO: If I could take you to – when we go to the Stone affidavit at page 47 ‑ ‑ ‑
HER HONOUR: I meant page 69. I am dealing with the second entry on the case note, not the first.
MS COSTELLO: Yes. At page 69, which is the wife’s application.
HER HONOUR: Correct. I am just concerned that you accept that the first mobile number on that page matches the number that was called for the client’s wife on ‑ ‑ ‑
MS COSTELLO: Yes. Yes, I do, your Honour.
HER HONOUR: Thank you.
MS COSTELLO: That is the wife’s application. It has two phone numbers in it “051” and “789”, and the husband’s, which I have taken you to, has one number in it, which is “789”. Now, you will see on page 22 that “789” was never called. In circumstances where the Minister has notified to the address given in the context of the application for a review of the citizenship decision, they have chosen to notify to the physical address given in that context, but they have not called the phone number that appears on pages 69 and 47. So, you will see that that first number, the “445” number:
Phoned client for LKA – number disconnected –
That phone number being “445”. Then the client’s wife is called on “051”, but it seems, most unfortunately, that they have not called the number ending in “789”.
HER HONOUR: I know, but – I assume for the moment that is right – they have called the wife’s number, both before sending out the notice and after the notice is sent – or the date that the notice is sent, and then five days later after the notice is sent.
MS COSTELLO: Yes, they have called one of those phone numbers provided in December 2016, that is right, your Honour, but on the Minister’s case there is no obligation to notify the wife or the second plaintiff.
HER HONOUR: No, I am dealing with your case. Your case is regulation 2.55 was not prescribed, they should have done something else, they had other information available to them and they took no steps in relation to that information, and ‑ ‑ ‑
MS COSTELLO: It would be an overstatement to say “no steps”, your Honour.
HER HONOUR: That is why I am taking you to these pages, because they obviously at two points, both before the notice was sent and after the notice was sent, attempted to contact, first of all, the client – they had a number which they rang which was disconnected – and then they, second, rang the wife on multiple occasions, or sought to contact her on multiple occasions.
MS COSTELLO: Yes, your Honour. They did attempt to contact the wife.
HER HONOUR: They contacted her, they left voice mails.
MS COSTELLO: Yes, your Honour.
HER HONOUR: And asked her to phone back.
MS COSTELLO: Yes, your Honour. Just returning to my script, so to speak, in terms of why the notification under section 119 was defective – and also, as your Honour has raised, we run the argument that the failure to make further inquiries was unreasonable – the relevant policy, which is in the joint bundle of authorities ‑ ‑ ‑
HER HONOUR: Sorry, are we going to come back to the other factual matters that you rely upon? As I understood it, you have taken us to the citizenship application. I had also understood that you had sought to – in paragraph 56 – as I understood it, should have tried harder to track down the first plaintiff, and you have taken us to the citizenship material, which is a few years earlier, and then also there was a complaint about the information which was available to Centrelink or Medicare. Do you still rely upon that fact?
MS COSTELLO: Yes, your Honour.
HER HONOUR: Should we deal with that now, so we have completed the factual analysis on this ground?
MS COSTELLO: Yes, but just in terms of that factual analysis, I would preface it by just referring you to one matter in this policy.
HER HONOUR: Yes, please.
MS COSTELLO: So, in the joint bundle of authorities, at page 153, this is the policy guidance that was in force at the time of the notification. There is a heading on 153:
Identifying the last address known to the Minister (reg. 255) –
First of all, if I could just take you halfway down the page, it says:
Under policy, enquiries to find the client should be conducted if:
·the address was not provided to the department recently (whether an address is “recent” will depend on the circumstances, including the visa period) or
·the notification is returned undelivered to the department.
Officers should contact the following third parties, if appropriate, and when doing so much bear in mind privacy issues:
·Medicare
·Centrelink
·state/territory police and/or correction facilities
·private sources, such as family members or utility companies.
The last known address does not depend on the officer’s knowledge coming from a particular source. The information from a third party source also does not need to be verified in any particular way . . . What is reasonable will depend on all the circumstances of the case.
And there is a reference to previous case law:
As a matter of policy, officers should attempt to contact the client (for example, by telephone or email) to verify that an address provided by a third party actually belongs to the client.
Of course, the policy does not mandate a method of notification, I do not put it that high, but I say that, given it is a fact‑intensive inquiry looking at reasonableness, one fact is that the very policy guidance provided to the delegate, in respect of identifying the last address, provided guidance to make inquiries with Medicare and Centrelink and so on. Here, no inquiry was made to Medicare, no inquiry was made to Centrelink, and the phone number that was the last known phone number, ending in “789” – one of the last known phone number, but it was the last known phone number given by the plaintiff who they were trying to notify, whereas the number they called three times was the wife’s number – was not telephoned.
HER HONOUR: Do you accept that the policy itself at least accommodates the possibility that where you have a difficulty finding someone that you actually would ring the wife?
MS COSTELLO: Yes, absolutely, but if you have been given two phone numbers by the wife you might, I think, reasonably ring the other one. Here, they are using the last known, I will say, details to cover the field, provided in the context of the citizenship case, but not ringing the phone number that the wife has put on the form. So, there is some step taken, but not enough to reach the level of what is reasonable in this case.
Not that the decision‑maker could have known this at the time, but the phone number that was called, of the second plaintiff, was not – sorry, I am just finding something. Just before I come to that, similarly, while I have you in the policy guideline, page 118 of the same guidance, under the heading:
Method of giving notice of cancellation ‑ ‑ ‑
HER HONOUR: What page, again, was that, Ms Costello?
MS COSTELLO: Page 118 of the JBA provides that, under the heading:
Method of giving notice of cancellation –
The guidance says:
The Act does not prescribe a method by which the notice of cancellation is to be given.
So, the situation that the delegate was in was opaque, in terms of how notification should have been done, in terms of whether there was a prescribed method, but the guidance did say that the delegate should contact Medicare and Centrelink if there had been a long period of time since the address had been given.
The affidavit of the second plaintiff, your Honour will have noted, does reveal that they, unfortunately, did give notice to the department of their new address after their moved to Victoria, but it was a couple of months after notification – it was in 2020 rather than 2019 – and so they did not receive that notification. At page 31 of the affidavit of the second plaintiff, you can see the Vodafone account for 2019 of the first plaintiff, which shows you the phone numbers were ending in “883” and “789” as at 2019. As a matter of objective fact, the phone numbers were ending in “789” and “883” and were not the number that in fact was called by the delegate on the page exhibited to Ms Milton’s affidavit, ending in “051”.
Those are the factual matters that what we said your Honour to be abreast of in respect of the notification. The other issue is that we make an argument about what “holder” means in section 119, and that is relevant for a couple of different grounds. In respect of ground 2, the breach of 120, the Minister’s argument is that ‑ ‑ ‑
HER HONOUR: There is a question about whether or not, as I understand your argument, there is one protection visa or three. Is that the way it is put? Because your pleading changed. Originally, the pleading was, I think, that – when I read the original application for constitutional writ – you said that:
The First Plaintiff was the primary visa holder. His wife the Second Plaintiff and son the Third Plaintiff held visas dependent on the First Plantiff’s visa –
That was in the old paragraph 15. Then in the amended application, as I read it now, it reads the plaintiffs allege that:
The First Plaintiff was the primary visa holder . . . The Protection Visa granted to the First Plaintiff . . . included the Second and Third Plaintiff as holders of the Protection Visa.
I read that as saying that there is just one visa. Is that the way it is put, or am I overreading it?
MS COSTELLO: That is the way it is put, your Honour.
HER HONOUR: I see. So, it is now put that the first, second and third plaintiffs only have one visa between them. Is it put that way, or am I misreading it?
MS COSTELLO: What I would say is that this is, again, a statutory construction task and the question is what does “holder” mean in section 119 – and the holder is to be notified in the vexed way. Anyway, “holder” is defined in section 5 of the Act in a certain way, and that is section 5 defines:
holder, in relation to a visa –
to be:
the person to whom it was granted or a person included in it.
In the most recent Stone affidavit, 14 August 2024, at page 27, you will see the visa grant notice.
HER HONOUR: Sorry, can you just give me that page number again, please.
MS COSTELLO: Page 27, your Honour.
HER HONOUR: This is the notification letter.
MS COSTELLO: Yes, your Honour. The letter starts on page 27 and ends on page 30. It is a letter dated 27 September 2011. I just pause to say that is a relevant fact in the sense that this family was granted protection visa status in 2011 and it was cancelled in 2019 in circumstances where they did not know there was a notice of cancellation. It is a quite long period of time. What it says at page 27, it says to the first plaintiff:
This letter refers to your application for a Protection visa . . . I am pleased to advise that a decision has been made to grant you a Subclass 866 (Protection) visa . . . The grant of your Protection (Class XA) Subclass 866 visa includes the following members of your family –
When one looks at section 5, which defines:
holder, in relation to a visa, means . . . the person to whom it was granted or a person included in it.
And when one looks at the evidence on page 27, we submit that your Honour ought to conclude that “holder” within the meaning of section 119 included the second and third plaintiffs because the visa that was cancelled was granted to them also and/or included them also. Of course, your Honour, the other evidence which is in the same affidavit, at pages 32, 33 and 34, is some evidence from a database which shows you some distinctions between the first, second and third plaintiff in terms of a visa grant notice difference.
HER HONOUR: It has a unique identifier, unique grant number, and it says in relation to each of them that each visa is held by one person.
MS COSTELLO: Yes, your Honour.
HER HONOUR: Can I come back and deal with the building blocks which are probably more fundamental, and I take that the records are not challenged that are set out at pages 33 to 35, but if you look at and think about the process that has gone through in relation to the grant of a protection visa and then the subsequent consideration – I am putting it neutrally, now – of family members, then the criterion is different. One could have a grant of a protection visa to a first plaintiff but a denial in relation to what might be described as family because they do not meet the separate criterion in section 36.
I think that this issue about decisions was considered, in the sense of how many decisions are there – it is probably not directly relevant, but it might inform the question of statutory construction about how you read “holder” – by a Full Court of the Federal Court some time ago, about whether or not it was decision or three decisions and the way to look at it. I think these documents are helpful, but if one actually looks at the way in which the statute works in terms of the grant of a visa, you have different criterion under 36(2) depending upon where you are; (2)(a) and (2)(b). Does that not help to inform the way in which you might look at “holder”?
MS COSTELLO: Yes, your Honour. The provisions that are relevant in this particular statutory task are not only sections 119, 139, 140 and section 5 but also section 36. I respectfully your observation, your Honour, that the way that a person obtains a visa as a family member under 36 ‑ ‑ ‑
HER HONOUR: It is a distinction between (2)(a) and (2)(b)(i) and (ii).
MS COSTELLO: Quite so, your Honour. Yes.
HER HONOUR: And the other thing about that letter is I think it includes in it – and I must say I have not read it for half a day – something about that it was not legal evidence of the visa.
MS COSTELLO: It does. Yes, your Honour.
HER HONOUR: So, I think the building blocks, at least for me, which I would like you to address, and you may now well have done it: 36(2)(a) as distinct from (2)(b)(i) and (ii); the records which would seem to be consistent with at least a view of the way in which those provisions operate, being the ones at 33 to 35; and then, of course, you have the letter of notification. The decision I was thinking about in terms of, have I got one decision or two or three is BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) FCAFC 171. I am not suggesting that is a complete answer, but that is one where I found where there was a consideration of how many decisions you have, which might help to inform the way one looks at the “holder” question.
MS COSTELLO: Yes, and as I seem to recall, that was about the consequences for a holder if a visa had been refused or cancelled.
HER HONOUR: I must say, it is not directly relevant, but it helps to inform the way in which we might look at the statutory provisions.
MS COSTELLO: Yes, and I did read that in the context of this case, but I cannot remember whether they found it was one decision.
HER HONOUR: Well, you might have a look at it and have a think about that.
MS COSTELLO: Yes, indeed. Thank you. The other aspect of this is that your Honour will have seen – and as has our learned friend – many applications for visas, and generally it is one application. So, it is one application for the visa in which there is the sort of primary applicant, and then there is family members included in the application. There is a proforma box about whether the family members make their own claims or not.
Here, looking at the evidence you have, the substance of the decision about whether to give the visas is dealt with by the independent merits reviewer in a decision starting at page 6 and ending on page 22. You will see, under the heading:
RECOMMENDATION ‑ ‑ ‑
HER HONOUR: Sorry, what was that page, again?
MS COSTELLO: Page 22, your Honour. That the reviewer recommended that the first plaintiff:
be recognised as a person to whom Australia has protection obligations . . . The second named claimant and third named claimant be recognised as a member of the same family unit as a person to whom Australia has protection obligations –
Which your Honour recognises the language in 36(2)(b), which provides that:
A criterion for a protections visa is that the applicant for the visa is –
either someone who is owed those obligations, or (b), someone:
who is a member of the same family unit as a non‑citizen who –
is owed those obligations. Here, the family makes one application, and a protection visa – there is one grant in the grant letter of a protection visa which is stated to include “the following members of your family”. Whilst the document asserts, at 28:
This letter is not legal evidence of your visa.
our submission, your Honour is that evidence is what a court finds to be relevant and probative, and here it is not for the Department of Immigration to say that the letter is not evidence of a visa. It is legal evidence that a protection visa was granted, it is here tended without objection on this hearing.
HER HONOUR: Can I ask a different question? What is usually produced by way of evidence of a visa?
MS COSTELLO: Evidence of a visa is determined by the laws of the Evidence Act. The Evidence Act provides guidance as to what ‑ ‑ ‑
HER HONOUR: But your clients must have been notified.
MS COSTELLO: The clients receive notification – the clients’ evidence as to their visas correlates with exhibit MES‑11. I am not going to deny that the evidence of the visa is contained in 33, 34, 35, and in that evidence it shows that there is three separate pieces of evidence showing the visa they have, showing a different grant number and stating ‑ ‑ ‑
HER HONOUR: There are three things: there is a unique grant number and a unique evidence number and then an identification that there is one person for each visa.
MS COSTELLO: Yes, your Honour. That is right.
HER HONOUR: So, you accept there is three visas, you just say that for the purpose of construction of “holder”, it is broad enough to pick up and include the fact that they have separate visas.
MS COSTELLO: Yes, your Honour.
HER HONOUR: Thank you. You do not contend there is one visa, which is the way I had read your amended application.
MS COSTELLO: I contend there is one grant of a visa that includes the two family members, but the evidence of the visa that has been granted is segmented into three separate sets of documentary evidence that are individualised to those three persons.
HER HONOUR: Thank you.
MS COSTELLO: Then when we get to the definition of “holder”, if the definition of “holder” bore more of a resemblance to the, say, documentary evidence of separate visas that your Honour can see at 32 to 34, it might be simpler. Instead:
holder, in relation to a visa, means . . . the person to whom it was granted or a person included in it.
Whilst we concede that the evidence shows three separate visas, there is still room within the meaning of “holder” to include plaintiffs two and three because the visa was granted to them in one grant. The other aspect – and this is a section in relation to which I have found no case law, and that is section 139.
There has been a focus in cases around section 140, and whether natural justice applies to what are usually called automatic cancellations, but section 139 is interesting as it states that:
If a visa held by 2 or more non‑citizens –
And I say that the visa is held by the three of them because the meaning of “hold a visa” includes being the recipient of a grant to you and the other person. Then:
Subdivisions C, D, E, F and FA and this Subdivision apply as if each of them were the holder of the visa –
And section 119 comes under subdivision E. We are in territory where, of course, there is exhaustive treatment of natural justice, but section 139 tells us that for the purposes of section 119:
If a visa is help by 2 or more non‑citizens –
Then section 119 applies as if they were the holder of the visa. So, Parliament’s intention, it should be concluded to be that for where visas are held by two or more persons, which we say they were because of the meaning of “holder”, section 119 notification must be made to plaintiffs two and three and not just to plaintiff one.
HER HONOUR: A distinction is drawn, as you said, between 139 and 140, because if you go to 140 the premise for the application for that section is:
a visa held by another person because of being a member of the family unit of the person –
Which is in a sense this case, as I understand the way you put it. Is 139 applying its terms?
MS COSTELLO: I am sorry, what do you mean by “its terms”?
HER HONOUR: It says:
If a visa is held by 2 or more non‑citizens –
This is why I was asking you, is it one visa or is it three visas? I do not know what:
If a visa is held by 2 or more non‑citizens –
means, and does it apply here? That is the factual question which I have been trying to work through by reference to the helpful materials you have taken me to.
MS COSTELLO: We submit that the evidence of plaintiff one, two and three’s visa status is contained in those documents at 32 to 34, but the protection visa was granted to the three of them together, and so it is correct, in fact, to conclude that the protection visa in this case, which was a visa where there was one application for the visa and there was one grant of it, is a visa held by the plaintiff and his wife and child. So, it is a visa held by two or more non-citizens, particularly because “holder of the visa” includes all the people to whom the visa was granted, and the grant notice granted the visa to the three of them at once and not separately.
For example, a Medicare card would typically have a mum, dad and some kids on it, often. Each particular holder of the Medicare card has a separate number, and you could each get your own Medicare card if you needed it, I suppose, if the 17‑year‑old left home. But there is one Medicare card, and the Medicare card is granted to the family and then each one is given an identification number. The evidence of the Medicare card can be held separately on a number of different cards, but at the same time there is one Medicare card held by multiple persons.
Similarly here, the Commonwealth has granted a protection visa to a family, and then they have provided evidence that each person holds the visa in a separate set of evidence. Visa, like property, is a bundle of rights. So, the visa is held by persons who have a bundle of rights associated with that. The title, for example, of a property and what the right is of a person in that property are two different things, just as the status of someone holding a visa and the grant of that visa are separate from the piece of electronic evidence that shows that someone holds that visa. Even though the evidence of visa‑holding can be seen separately, that does not take them away from holding it together.
What is also apparent from section 140(1) and (2) is that subsection (1) provides automatic cancellation but says nothing about whether notice must be given to members of the family unit whose visas are automatically cancelled. By contrast, section 140(2) specifically states:
the Minister may, without notice to the other person, cancel the other person’s visa.
We submit that by a combination of looking at sections 139, 140, 119 and section 5, the correct conclusion is that notice of the cancellation of the protection visa had to be given to all the holders of that visa, and that plaintiffs two and three were holders of that visa. In the legislative framework here, Parliament seeks to cover the field as to natural justice. Having embarked upon that codification of notification, the Act must be given its effect, and section 139 and section 5 lead to the conclusion that the non‑primary holders of the visa – non‑primary in that they did not make the protection claims – are holders of the visa.
If you see it the other way, that they are not holders of the visa and they did not need notice, then that is a situation where natural justice is ousted, and natural justice must be ousted with clear words of necessary intendment. Looking at the gap in section 140, which does not say that the visa may be cancelled without notice, the better conclusion is that section 140 allows automatic cancellation of all the holders of the visa, but it does not deprive those holders of the visa from notice under section 119. Your Honour, I might move to another ground at this point.
HER HONOUR: Yes, thank you.
MS COSTELLO: I will go to ground 1 now, which can be encapsulated in saying that ground 1 is a failure to consider some of the statutory consequences of cancellation. We start with the accepted proposition that the delegate was obliged to consider the mandatory legal consequences of the cancellation in the framework of the Migration Act. That is established in the case of NBMZ, cited both in our submissions and our learned friend’s submissions.
The cancellation decision record, which is at page 8 of the second plaintiff’s affidavit, shows that the delegate considered some statutory consequences but not all those that needed to be considered. The delegate did not consider the statutory consequences in sections 46A, 189 or 198 for plaintiffs two or three. Given section 140 puts beyond doubt the automatic cancellation of the visas of the second and third plaintiffs, it inevitably follows that they, like the first plaintiff, are faced with statutory consequences under 46A, 189 and 198.
If you look at the reasoning in the cancellation decision which starts at page 8, we get to a heading ‑ ‑ ‑
HER HONOUR: So, I am right that there are five consequences, not just the statutory ones, that you complain about? Five legal consequences that were not considered. One was that:
the Second and Third Plaintiffs may be subject to immigration detention –
including indefinite detention.
MS COSTELLO: Yes.
HER HONOUR: The second was “may be removed” under 189 and 198 of the Migration Act.
MS COSTELLO: Yes, your Honour.
HER HONOUR: I think your application said 190 but you meant that, I assume.
MS COSTELLO: I apologise.
HER HONOUR: The next dealt with the fourth plaintiff, that they:
may become an unaccompanied minor –
Do you still rely upon that particular?
MS COSTELLO: I do, but it is easier to rely on the mandatory framework consequences.
HER HONOUR: Right. Then the fourth was that:
the Second and Third Plaintiffs would be subject to a ban on applying for a further visa under s 46A –
MS COSTELLO: Yes, your Honour.
HER HONOUR: Then the fifth was, again that:
the Fourth Plaintiff, may be deprived of the benefits of living in Australia –
Do you still rely upon that one?
MS COSTELLO: Yes, rely upon it but I would seek the three statutory consequences as the primary argument here as they are so well supported by the authority of NBMZ.
HER HONOUR: Thank you. I interrupted, I apologise.
MS COSTELLO: No, thank you. It is helpful to have your question, with respect. The cancellation decision at page 20, under the heading:
Any consequential cancellations that may result –
We get two lines. They simply say:
If the visa holder’s Protection visa is cancelled, his wife and son would be liable for consequential cancellation under section 140 of the Migration Act.
I give this consideration a little weight against cancelling the visa.
Then you have the next heading:
Legal consequences of a decision to cancel the visa –
And I will not read out that paragraph, but all of that analysis of the legal consequences of a decision to cancel the visa are confined to plaintiff one. At the bottom of the page, it says:
I give this consideration some weight against cancelling the visa.
So, you have here a disproportionate weighting of the consequences for plaintiff one compared with the consequences of plaintiffs two and three.
HER HONOUR: Is it disproportionate? I thought it was a failure to take it into account.
MS COSTELLO: It is.
HER HONOUR: Sorry, just because you put it in terms of disproportionate weight.
MS COSTELLO: In the context of fact‑finding, your Honour, which is what inferences should be drawn from page 21 in reaching, we say, the correct conclusion that the delegate did not consider the statutory cancellations for plaintiffs two and three. We say the first indication that the delegate did not consider the consequences under the statute for plaintiffs two and three is this difference in the weight. So, if the delegate had considered the statutory cancellation consequences for the wife and son, more than a little weight would have been given.
It does not make sense to say, I give it some weight against cancelling the visa, that the first plaintiff is liable to the consequences in 46A and 189 and 198, and then at the same time only give a little weight in respect of plaintiffs two and three in the category above. We say that should lead your Honour to conclude the difference in that weighting is because the delegate did not consider those statutory consequences for plaintiffs two and three. That is the first reason.
The second reason we say your Honour should conclude that the delegate did not consider the statutory cancellation under the visa framework for plaintiffs two and three is that if the delegate had considered them the delegate would have said so, and the delegate did not say so. The delegate tells us exactly what the delegate considered as consequences, and all the delegate considered was the bare cancellation of plaintiffs two and three, on the one hand, and then the statutory consequences of cancellation for plaintiff one. You do not need to go beyond the language of this page to find elliptically the consideration of something that the delegate was on constructive notice of because there are all sorts of things the delegate should have known or should have thought about, but if the delegate does not say they have considered it then the delegate has not considered it.
The third reason that your Honour should infer that these consequences were not considered is that these are very serious consequences – not being able to apply for another visa, having to leave, potentially being detained – in the context of people who have held a protection visa since 2011, and had the delegate actually considered that a woman and child would be liable to detention, deportation and unable to apply again for the visa they had been living here on for eight years then the delegate would have said so. I will not repeat the written submissions on this point, but you will see in the written submissions a collection of the sort of phrases the Minister has repeated in why you should infer that these matters were considered, and that is in the amended reply at paragraph 1.
We have collected for you the various ways in which the Minister urges you to infer these considerations as being obvious – in the broad, you could characterise their submissions saying they are obvious, or the delegate must have been aware of them. We say you should not read into the decision record consideration of these things that are not contained in there. I will move now to a separate ground, your Honour.
HER HONOUR: That is completion of ground 1?
MS COSTELLO: Yes, your Honour.
HER HONOUR: Right, and we have done ground 2. We have 3, 4 and 5 to go – you have dealt with 5, as well, I apologise. So, grounds 3 or 4.
MS COSTELLO: Yes, your Honour. Ground 3 is that the cancellation decision is manifestly unreasonable. Here, we say that, again, looking at the decision record ‑ ‑ ‑
HER HONOUR: Sorry, just again, we have four matters you rely upon?
MS COSTELLO: Yes, but again I will show my cards and say that the main thrust of this ground is the unreasonable weight given to the proposition that the plaintiff refused the notice.
HER HONOUR: This is what is set out in 9.1, subparagraph 2 of your amended application? Unreasonable in giving weight:
to the fact that the First Plaintiff “failed to respond to the Notice or engage in the cancellation process… the recipient refused to sign for the article.”
Is that what ‑ ‑ ‑
MS COSTELLO: Precisely so, your Honour. Yes.
HER HONOUR: Thank you.
MS COSTELLO: This is a ground where it does not take long to say it, but hopefully that does not mean your Honour de‑weights the emphasis we place on this argument. If you look at the decision record, you see that under the heading – you see it on page 20, and the heading in bold is:
The visa holder’s past and present behaviour towards the Department –
And what the decision‑maker said was that:
The visa holder has failed to respond to the Notice or engage in the cancellation process. The Notice was sent to the visa holder’s last known address according to departmental records. However, information provided by Australia Post indicates that while delivery was attempted to this address, the recipient refused to sign for the article.
I give this consideration some weight in favour of cancelling the visa.
Now, to give this consideration weight in favouring the cancelling of the visa must mean that the decision‑maker is holding it against plaintiff one as an adverse matter that he has failed to respond to the notice or engage in the process. It must be inferred or found on this reasoning that the decision‑maker is concluding that plaintiff one himself refused to sign for the article.
HER HONOUR: I am a bit confused. I thought this was a “no evidence” ground, and so a “no evidence” of the particular that I identified earlier, and I think that you accept that if there is a skerrick of evidence available to support the finding then we are not in “no evidence” territory. So, we are back to analysing in some detail, I think, what evidence there was about both of these matters.
We have dealt with the notification question already, and so that is one argument. I think you need to deal with it on the basis that you have lost that argument in terms of no notice; this is an argument put on the assumption that there was notice, I think. Otherwise, you do not get to it, do you? Then the second aspect to it, I think, is no notice is one aspect and then the second aspect is refusal to sign. So, no evidence of notice and no evidence of refusal to sign.
MS COSTELLO: Yes, your Honour. I would just say one more thing, though, and that is whilst there is no evidence that he has been given notice of it and there is no evidence that he refused to sign it, the taxonomy of arguments that are essentially, this is an unreasonable finding, no one could find this – the taxonomy is difficult to pin down in terms of the case law. As to whether you characterise this as irrational finding, unreasonable finding or a “no evidence” finding, the distinctions between these kinds of errors, I find, can be a little difficult to follow in the various cases. We seek to make the argument in plain terms that the delegate’s finding of weighing against the visa holder, his active rather than passive to failure to engage in the process, was irrational, unreasonable or based on no evidence.
HER HONOUR: I want to just make sure, I had only understood 10.1, by your amendment, to be “no evidence” because that is what 10.1 says. It is the same in 9.1:
in circumstances where there was no evidence –
So, 9.1 is where I should have been, I apologise, not 10.1. It may be that you now seek to expand the grounds upon which you complain, but I understood it was a “no evidence” point.
MS COSTELLO: In 9.1 in the amended application, we say the delegate erred by giving weight in favour of cancelling the visa to the fact that – and then we say giving this matter weight was unreasonable and irrational in circumstances where there was no evidence that the first plaintiff knew about the notice or that it was the first plaintiff who had refused to sign for the notice.
HER HONOUR: That is why I am saying this is on the assumption you have lost your no notice. It now is the notice was served sufficiently to give them notice, because that ground you have lost on the assumption that this is the way I think it has to work, so I am now in:
there was no evidence that the First Plaintiff knew about the notice –
And yet I have a prescription against you, if you are wrong, that they have got notice. So, that is one thing I would like submissions on, and then the second is:
no evidence that the First Plaintiff . . . had refused to sign for the notice.
when we have the, for what it is worth, Australia Post notification back, and that is why I have said I have come back to – if I start off as a “no notice” case, that means no skerrick of evidence, I now have these two aspects I have to deal with, I think. I may have it wrong, Ms Costello, I just want to make sure I understand the way you are putting it.
MS COSTELLO: Yes, your Honour. Just in terms of your first question, if we lose on the notice point about “holder” and “prescribed”, et cetera, what that is about is deemed notice, it is not about actual notice. There is a distinction here in fact, which is that the delegate could sit there and say, notice has been given as required by the rules so that it is deemed to have been given. That is not the same thing as a conclusion that the notice has been received.
There is a distinction there that is readily understood in these cases, because there is a certain – to some extent, there is hoops that have to be jumped through for notice to have been deemed to have been given for time to start to run to lose your merits review rights, as they did here. That is one thing, but it is a different thing to transpose those deemed notice provisions into an actual finding that someone refused notice or failed to engage.
Here, what has gone wrong is that the decision‑maker, knowing that the notice has been returned to sender, finds that plaintiff one actively refused to engage in the process, and finding that it was him who refused the envelope. Perhaps I am back where you started, your Honour, and so there is no evidence that is capable of supporting that adverse finding and weighting of the matter against the plaintiff.
We also in fact rely on the fact that what is drawn upon in the evidence before you is information from the citizenship application, which is a 2015 application. The time that you are considering these steps and whether they were reasonable is four years later in 2019, and in between 2015 and 2019, there was an AAT review. So, the failure to make inquiries of documents in the AAT’s review which are before the Department is also unreasonable.
The fifth fact is that the visas had been held since 2011, so, obviously, the address given for that visa – it is quite conceivable that that address would be out of date. If you look at the evidence we have for how the delegate went about deciding on how to notify, you will see, on the same page where the phone numbers called are listed, that there has been a changing of the guard; there is one delegate considering how to notify and then there is another one cancelling the visa. The unreasonableness here in notification affects both stages of the decision‑making, in that there is an unreasonableness in how to notify, then there are phone numbers that follow the first attempted notification.
HER HONOUR: I put that to Mr Hill. I said there was calls made both before and after the notice was sent out.
MS COSTELLO: Yes. So, here when we are talking about unreasonableness in this process, there are phone calls ‑ ‑ ‑
HER HONOUR: Are you saying the same error infects both stages?
MS COSTELLO: Yes, your Honour.
HER HONOUR: Is it any higher than that? I am not seeking to diminish it, but you would say it is the same error; the same error is the same five things you rely on, excluding the return to sender for what I will call the first stage.
MS COSTELLO: Yes, indeed. Just to be, I suppose, precise about the way we put it on the facts, there is an accumulation of problems, in that when the initial delegate sends the notice, at that point, that delegate does not know that it will be returned to sender, but when the delegate is sending the cancellation, having not made the efforts that we say are necessary to have done more notification, that notice of cancellation is given in circumstances where, at the time of deciding to cancel, the delegate has – I am going to call it, descriptively – a return to sender of the NOICC and a non‑inquiry from Medicare or Centrelink, and a non‑inquiry into the AAT citizenship review process.
At the time that the ultimate canceller decides to weigh against the plaintiff non‑participation in the cancellation process, the unreasonableness in trying harder to find out where these people are and how to contact them crosses over with that unreasonableness in weighing against the plaintiff his perceived active, rather than passive, non‑participation of the process.
HER HONOUR: I think this is why I said to you at the outset, if you approach the question of notification and the steps taken as the first question, then, as I understand the way you put it, it is that you have a step taken prior to cancellation, which is the notification of intention to cancel. Steps are taken prior to that notice going out to contact the first and second plaintiff. You say that conduct was unreasonable because they failed to use the information available to them from the AAT review of the citizenship application and instead used old information to obtain two phone numbers on the citizenship application, and that unreasonableness, as I understand the way you put it, is amplified or should be seen in the context of the fact that consideration of sending a notice was in 2019, interrupted by the very event upon which you rely, which was the AAT review in between.
As another contextual matter you rely upon, it is that these plaintiffs – that is, the first, second and third – have held their respective visas since 2011, and that has two aspects to it, as I understand it. First, they have held them for a long period of time. Second, it is likely that they will have shifted from the time at which that visa was granted to them. Have I missed anything in relation to your argument about the period before the notice is sent?
MS COSTELLO: No, your Honour.
HER HONOUR: You then say the notice is sent and it is returned to sender, which has on it a refusal. That is, it was refused. I bring forward, on your argument, in relation to the cancellation decision, the same facts and matters that we have just discussed pre‑ the notice going out but add to it this additional fact.
MS COSTELLO: Yes, your Honour.
HER HONOUR: Have I missed anything?
MS COSTELLO: The only other thing is that, as is apparent from the ground alleging the section 120 breach, part of what the decision‑maker used as grounds for cancellation included material in the Tribunal’s decision on review of the citizenship refusal. So, here you have only use of address and phone number information from the citizenship application for the purposes of notification, but then use of things found by the Tribunal on review in the merits of cancelling the visa. It is clear that the Tribunal process was a matter of which the NOICC sender and the cancellation decision‑maker were aware.
HER HONOUR: I do not know that that inference in relation to the NOICC sender is right, is it? I just do not know. At the moment, if that is the inference you want me to draw then you should put that inference as a submission, I think, because I do not know if that that has been put in those blunt terms. You need to tell me what the facts are that give rise to that inference, and that I should draw it.
I accept, I think, that if one goes to the cancellation decision which is attached to the second plaintiff’s affidavit, one has reference to the Tribunal and what the Tribunal did, both as a matter of fact, on page 10 at paragraphs 13 and 14. Then, in paragraph 17, there is a description and assessment of the statutory declaration that was a subject of consideration. That was supplied to the Tribunal, which is paragraph 17 on page 10 and following.
MS COSTELLO: Your Honour, in the affidavit of Ms Milton from February, the NOICC itself – the notice of intention to cancel – is there.
HER HONOUR: Just one moment, please. Where do I find this, I am sorry?
MS COSTELLO: It is the affidavit, filed on 27 February 2024, of Ms Milton.
HER HONOUR: I have the NOICC at page 23 of that affidavit.
MS COSTELLO: Yes, and in this NOICC ‑ ‑ ‑
HER HONOUR: And it has the same – I see, it has the same facts as were set out in the cancellation decision itself on page 25.
MS COSTELLO: Yes, so at page 31 – at the top of the page numbered 31 – at paragraphs 68 and 69, for example, there is reference to what was claimed before the Tribunal and what the Tribunal determined.
HER HONOUR: Yes, I see. Thank you, I understand it now.
MS COSTELLO: The two pages that set out what it is that the notice is based on are in that same affidavit, the number at the top being page 19. There is a box saying “NOICC” and “Last Known Address” and it talks about what has been checked, and it says “ICSE” and “TRIM”, and the “Assessment” and “Reason for assessment” is:
Address provided in conjunction with citizenship application –
We submit that, based on that, you should conclude that the inquiry stopped at the end of the citizenship application, in terms of what identifying address or phone number was provided. You can find that based on that piece of evidence, combined with the use of the phone numbers – which is over the page, in the table – which are phone numbers both taken from earlier, not the AAT documents.
HER HONOUR: Thank you. Anything else?
MS COSTELLO: No, your Honour.
HER HONOUR: Will you have a conversation between the two of you and then send through notification to my Chambers or to the Registry about when you might file this additional material.
MS COSTELLO: Yes, your Honour, we will. Just one last thing is that I will also seek to agree with our learned friend if it seems useful to provide you with the relevant guideline, which include the CROC.
HER HONOUR: Even just a reference to it and the relevant parts to it will be very helpful.
MS COSTELLO: Yes. The other thing is, as you know, we are instructed by five plaintiffs, some are adult and some are minors, and just to flag in respect of any costs, we would seek to be heard on costs, or perhaps to potentially even talk to our learned friends around costs, any orders and how they affect the children, as opposed to the adults, in respect of the application. I do not seek to make any application now but raise it so that – sometimes when judgment is delivered the cost decision has already been made. I just wanted flag that we would seek to be heard in respect of cost orders in respect of the various family members.
HER HONOUR: I understand. You may even have a discussion with Mr Hill on if that can be addressed, as well. That is fine. If it cannot, depending on the outcome, I will take that into account.
MS COSTELLO: May it please the Court.
HER HONOUR: Can I thank everyone for their assistance and adjourn the Court.
AT 12.29 PM THE MATTER WAS ADJOURNED
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