Uhrle and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 3522

Uhrle and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3522 (11 September 2020)
Division:GENERAL DIVISION
File Number: 2020/3934
Re:Gene Uhrle
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Tigiilagi Eteuati
Date:11 September 2020
Place:Brisbane

The decision under review is affirmed.
...............................[SGD].........................................
Member Tigiilagi Eteuati
Catchwords
PRACTICE AND PROCEDURE – Non-revocation of mandatory cancellation of Class TY Subclass 444 Special Category visa – whether the Applicant was notified and invited to make representations as required by section 501CA(3) of the Migration Act 1958 – whether the Applicant made representations in accordance with the invitation including within the prescribed time for making representations – application of EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230 – whether the Applicant was capable of comprehending the section 501CA(3) notice and invitation – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176
Brian Lawler Automative Pty Ltd and Collector of Customs, New South Wales [1978] AATA 49
Collector of Customs (NSW) v Brian Lawler Automotive Pty Ltd [1979] FCA 21
EFX17 v Minister for Immigration and Border Protection[2019] FCAFC 230
Gibson v Minister for Home Affairs [2020] HCATrans 46
Sillars and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 994
REASONS FOR DECISION
Member Tigiilagi Eteuati
11 September 2020
BACKGROUND

This is an application by Mr Gene Uhrle (“the Applicant”) for review of a decision made by the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”) on 22 June 2020, refusing to revoke the cancellation of the Applicant’s visa pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”).
The Applicant was notified of the Minister’s decision by email sent to his authorised recipient on 22 June 2020. The Applicant applied to this Tribunal for review of the non-revocation decision on 30 June 2020. There is no suggestion that the Applicant was out of time to seek review of the non-revocation decision.
Both parties agree that the decision of the delegate is reviewable. Having considered the decision of Brennan J, then president of the Tribunal, in Brian Lawler Automative Pty Ltd and Collector of Customs, New South Wales [1978] AATA 49 and the decision of the Full Court of the Federal Court on appeal from that decision in Collector of Customs (NSW) v Brian Lawler Automotive Pty Ltd [1979] FCA 21, I accept that the decision of the delegate is reviewable.
However, the Respondent argues that, in considering the application before the Tribunal, the Tribunal is precluded from determining that the power to revoke cancellation is enlivened.
The Respondent’s submission was advanced on the basis that the power to revoke cancellation in section 501CA(4) of the Act was only enlivened if the Applicant had made representations to the Minister in accordance with the invitation to do so in section 501CA(3)(b). Regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) (“the Regulations”) prescribes that representations to the Minister made in response to an invitation under section 501CA(3)(b) of the Act must be made:
“within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act”
The Respondent provided the Tribunal with evidence that the Applicant had acknowledged receipt of the documents issued to him pursuant to section 501CA(3) of the Act on 21 May 2019.
The Respondent also provided the Tribunal with a copy of a letter from the Applicant’s former lawyer which was sent to the Department by email on 28 November 2019.
In that letter the Applicant’s former lawyer stated:
“We acknowledge that under Regulation 2.52 (2) any representations in relation to the revocation of the original decision must be made within 28 days after taken to have been given notice. However, we might respectfully requesting that our client’s representations for revocation be considered despite the time that has passed based on compelling reasons, and not a disregard of the prescribed timeframe requirements by him.”
The Applicant accepted that he received the relevant documents in the sense that they were handed to him on 21 May 2019. The Applicant did not raise any concern that the contents of the documentation provided to the Applicant did not meet the requirements of section 501CA(3) of the Act or regulation 2.52 of the Regulations.
The Applicant also submitted that he did not make representations in accordance with the invitation to do so until 28 November 2019.
Rather, the Applicant argued that section 501CA(3) of the Act had never been complied with as the Applicant was “illiterate” and was not capable of comprehending the written notice setting out the cancellation decision, particulars of the relevant information and the invitation to make representations to the Minister. The Applicant argued that in those circumstances, it could not be said that the Applicant was “given” the written cancellation notice or was “invited” to make representations to the Minister about revocation of the original decision.
The Applicant also advanced an alternative argument that the notification invitation requirements in section 501CA(3) of the Act were complied with at some time between mid-October 2019 and 22 November 2019, when his stepmother or his former lawyer read the notification document and explained it to the Applicant. According to this argument, if the notification document was explained to the Applicant in November 2019, the representations which he made to the Department on 28 November 2019, were within time.
The Applicant’s argument’s relied upon the decision of the Full Court of the Federal Court in EFX17 v Minister for Immigration and Border Protection[2019] FCAFC 230 (“EFX17”) in which the plurality (Greenwood and Rares JJ with Logan J dissenting) found that section 501CA(3) of the Act provided for an “irreducible minimum standard” of an applicant being capable of comprehending notification of the cancellation decision, particulars of the relevant information and the invitation to make representations to the Minister about revocation of the cancellation decision.
In EFX17, the plurality found that the circumstances of the applicant in that case were such that the applicant was not capable of comprehending the cancellation notice and the invitation to make representations, and thus, the requirements of section 501CA(3) of the Act remained unperformed. The Full Court so declared and issued a writ of mandamus requiring the Respondent to perform his duties under section 501CA(3) of the Act according to law.
The Respondent’s submissions in relation to EFX17 were essentially twofold. The first argument was that the effect of EFX17 was that, in order to find that the Minister had failed to properly carry out his obligations under section 503CA of the Act, it was insufficient, of itself, to find that the Applicant was incapable of comprehending the section 501CA(3) notice and invitation. The Respondent argued that, according to the Full Court’s decision in EFX17, in order to find that the Minister had not carried out his obligations under section 501CA(3) of the Act, it was also necessary for the Minister to have actual or constructive knowledge “of the Applicant’s illiteracy” prior to giving the section 501CA(3) notice.
The second argument was that, as a matter of fact, the Applicant was capable of comprehending the section 501CA(3) notice and that the “irreducible minimum standard” was met. It followed that the Applicant was notified of the cancellation decision and invited to make representations when he was handed the notice on 21 May 2019.
After receiving written submissions from both parties, on 12 August 2020, the Tribunal held an interlocutory directions hearing in which the Tribunal invited both parties to put on any further evidence and submissions.
The Tribunal held an interlocutory hearing on 21 August 2020, which lasted for almost 6 hours, during which the Tribunal heard evidence and oral submissions from the parties.
For the reasons which follow, the Tribunal has determined that it is not satisfied that the Applicant was incapable of comprehending the cancellation notice and the invitation to make representations. Therefore, the Tribunal finds that the Minister discharged his obligations under section 501CA(3) of the Act on 21 May 2019. As such, the Applicant failed to make representations in accordance with the invitation to do so within 28 days after the Applicant was given the cancellation notice and the invitation to make representations. It follows that the power to revoke the cancellation of the Applicant’s visa under section 501CA(4) of the Act was never enlivened.
The Tribunal accepts the submissions of the parties that the Minister’s delegate erred in proceeding on the basis that they had the power to consider whether the Applicant passed the character test or whether there was another reason to revoke the cancellation of the Applicant’s visa.
However, the Minister’s delegate’s ultimate decision was that the power to revoke cancellation of the Applicant’s visa was not enlivened. The Tribunal has reached the same conclusion for different reasons.
In those circumstances, the Tribunal has decided to affirm the Minister’s delegate’s decision.
Legislation
Section 501(3A) of the Act provides:
“(3A) 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.”
Section 501CA(1) and (2) of the Act provide:
“(1) This section applies if the Minister makes a decision (the original decision ) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.”
Section 501CA(3) of the Act provides:
“(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.”
Section 501CA(4) of the Act provides:
“(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
Regulation 2.52(1) and (2) of the regulations relevantly provide:
“(1) This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.
(2) The representations must be made:
…
(b) for a representation under paragraph 501CA(3)(b) of the Act--within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act.”
EFX17
In EFX17, Greenwood J decided as follows at [132] to [139] (omitting for the moment [134]):
132.“The question that arises in the very specific and particular circumstances of this appellant is: did the Minister, by his delegate, discharge the mandatory obligation cast upon him by s 501CA(3)(a) to give the former visa holder written notice setting out the cancellation decision made in reliance upon s 501(3A)(a)(i) and particulars of the required “relevant information”, as defined, by causing the letter of 3 January 2017 and the Mandatory Cancellation Notification Package – version 07.06.16 pdf, all in English, to be handed to the appellant by a Corrective Services Officer on 4 January 2017? That “way” of “giving” the appellant the required written notice and particulars of relevant information, might fall within the statutory description of “the way that the Minister [by his delegate] considers appropriate” (in s 501CA(3)(a) governing the description of the material in (a)(i) and (ii) of s 501CA(3)), but that state of considered appropriateness is conditioned by the phrase “in the circumstances”.
133.It is not clear what “circumstances” the Minister’s delegate took into account (or may have failed to take into account) in considering the way selected as “appropriate in the circumstances”. However, the way selected, as appropriate, of giving written notice setting out the decision and particulars of the relevant information, by handing the appellant the material described at [132], was required to meet the irreducible minimum standard of actually giving the person written notice and the information comprehended by the defined term “relevant information”. In other words, the person must “get notice”. He must be “given notice”, not just handed a suite of documents coupled with a sense of urgency being impressed upon the Corrective Services Officer to make sure that he or she secured the signature of the person on the “Acknowledgement of Receipt” page of the letter. The mandatory obligation is not one of “service”. It is an obligation to “give notice”. If the relevant person has no capacity to comprehend whatever it is that is given to, or served upon, him or her, which is said to satisfy the requirements of s 501CA(3)(a), it is difficult to see how it can be said that the Minister has discharged the obligation to “give” the relevant person “notice”. The question is not simply whether the appellant physically received the documents but rather the scope or burden of the irreducible minimum standard cast upon the Minister by s 501CA(3) as a matter of statutory construction taking into account the relationship between s 501(3A) and s 501CA(3).
…
135.In the circumstances of this particular appellant, having regard to all of these factors set out at [134], the service upon the appellant of the suite of documents handed to him on 4 January 2017 in the Correctional Facility coupled with the urgency impressed upon the Correctional Services Officer to ensure that he secured the appellant’s signature on the acknowledgement page so that there might be no doubt that the appellant had been given the suite of documents, does not meet the irreducible minimum standard of giving the appellant notice of the cancellation decision and the particulars of relevant information.
136.Apart from the obligation to give written notice of the decision and the relevant particulars, the Minister, by his delegate, was required to invite the person to make representations within the period and in the manner determined by the Regulations “about revocation of the original decision”.
137.This obligation also reflects an irreducible minimum standard of ensuring that the appellant is invited to make representations about revocation. If the appellant, in the particular circumstances confronting him, was not capable of comprehending that the material handed to him on 4 January 2017 contained an invitation to make representations, within the time and in the manner determined by the Migration Regulations, which would have the effect of enabling him to put forward facts and circumstances which might satisfy the Minister that there is a reason why the cancellation decision should be revoked, service of the documents on 4 January 2017, having regard to the factors set out at [134], suggests that the invitation contained within the documents in English was not a real and meaningful invitation and thus, not an invitation for the purposes of the Act.
138.It is, of course, true that the appellant was served with a letter in English setting out the cancellation decision and identifying factors relevant to him as an individual and it is also true that the documents handed to him contained an invitation to make representations about revocation. The elements of those matters are set out at [102] to [108] of these reasons. However, having regard to the factors described at [134], giving the appellant those documents in that way and (by those documents), inviting the appellant to make representations about revocation did not discharge the obligations required of the Minister under s 501CA(3) in a real and meaningful way. Having regard to the factors at [138] as discussed more broadly in these reasons, the Minister’s delegate could have taken steps to ensure that an interpreter skilled in the language of the appellant (Hazaragi) was made available to the appellant who was, of course, in custody and readily available to the Minister’s delegate. Alternatively, the Minister’s delegate might have taken steps to ensure that a representative of the PLS was available to the appellant when the documents were handed to him so that someone with an inquiring and analytical mind with the interests of the appellant at heart might have been able to take steps to protect the interests of the appellant. Alternatively again, the Correctional Services Officers who were asked to hand the 86 pages of material to the appellant, on behalf of the Minister’s delegate, might have responded to the appellant’s request to seek the assistance of his fellow prisoner who presumably had some capacity to engage with the appellant. However, the dominant emphasis of the Minister’s delegate was to make sure that the Correctional Services Officers handed the 86 pages of material to the appellant and secured the appellant’s signature on the acknowledgement of receipt form.
139.Two other factors of real importance should be mentioned. First, the appellant was, at the relevant time, in the control and custody of the Queensland Department of Corrective Services and was thus amenable to steps that might have been taken as described in [140] of these reasons. Second, the appellant was familiar to the Minister’s departmental officers in the sense that he had been granted a protection visa as a result of those officers comprehensively considering whether the Minister could be satisfied that the appellant held a well‑founded fear of persecution for a Convention reason. All of the relevant circumstances relating to that matter were known to the departmental officers and presumably as a matter of good government record‑keeping, those officers had files and documents recording those matters. It must have been apparent to the Department either actually or inferentially that the appellant suffered special disadvantage.”
Justice Rares advanced similar reasons in finding that section 501CA(3) of the Act had not been complied with at paragraphs [171] to [176] as follows:
171.“ I am of opinion that the invitation and the notice were not given in accordance with s 501CA(3). That is because s 501CA(3) is a particular section that applies only where the power being exercised under s 501(3A) has been enlivened and acted on, namely, in respect of a person who is in prison serving a sentence of imprisonment. That is why the particular form of giving notice in s 501CA(3)(a) is different to all of the other provisions in the Act (except s 501C(3)(a) which operates in a different context to s 501CA) by adding “in the circumstances”. A person in prison is not in the same “circumstances” as apply to a person given a notice of a cancellation of a visa who is in the community where such a person has access to the ordinary resources of persons at liberty there. And, similarly, regs 2.52 and 2.55 do not apply to giving a notice under s 501CA(3)(a) to persons in immigration detention, where access to resources and information are also different to those available in a prison operated by a State or Territory government.
172.The general provisions of ss 494A to 494C as to the manner in which the Minister may “give” documents under the Act do not apply to s 501CA because of the specific requirement in s 501CA(3)(a) that the notice be given “in the way that the Minister considers appropriate in the circumstances”. In Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7 (and see too: David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 276 per Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed at 269), Gavan Duffy CJ and Dixon J said:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
173.A person in prison, moreover, has only the time in which the regulations allow for him or her to respond to an invitation to make representations in accordance with s 501CA(3)(b). Relevantly, reg 2.52(3) provides that such a response must be in English or with English translations. The 28 day time limit (that reg 2.52(2)(b) prescribes), in those circumstances, makes it essential that the invitation under s 501CA(3)(b) be intelligible, in fact, to the person to whom it is given, as opposed to merely satisfying a formula that invites the person only in the English language, regardless of his or her capacity, or ability to access from prison resources, such as interpreters, to enable him or her, to understand that form of invitation or the English language.
174.As Logan J posited in argument, were the same written notice (as that given to the appellant) given to a blind person in prison without access to translation or braille equipment or assistance, the document would comply in form, but not in substance, with the statutory obligation to give a notice and invitation under s 501CA(3). That is because such notice and invitation would not be intelligible to the person and thus, in substance, the notice would not be appropriate “in the circumstances”. The blind person would not be able to comprehend what he or she had been given or know that it included an invitation on a matter of significance to him or her.
175.The particular circumstances in which s 501CA operates specifically only in respect of a person in prison reinforce a construction that the Parliament intended that a notice and invitation under s 501CA(3) be in a form that is actually meaningful to its intended individual recipient, and that it be given after the Minister has engaged in active intellectual consideration about what will be “appropriate in the circumstances” so that the recipient be able to understand, immediately on its receipt, not only the notice but also the purpose of the invitation to make representations and that they must be made within 28 days. This is particularly so since the decision to revoke the visa under s 501(3A) is made without any requirement for the Minister to comply with natural justice or even to inform the visa holder that the cancellation of his or her visa is being considered prior to the decision being made.
176.The officer’s email that Greenwood J has set out at [7] simply required the prison authorities to give to the appellant a package consisting of 86 pages, being the mandatory cancellation notification package, together with the particular notification. The email emphasised only that it was important that the appellant be given the package and notification without delay because there was a limited time in which he could apply for the revocation of the cancellation of his visa. The email did not seek to ensure that the appellant would be in a position to understand what the documents that it asked be given to him, said, in particular about not only the cancellation of his visa but also the statutory invitation under s 501CA(3)(b) and the time limit of 28 days in which to make representations in English. Moreover, there was no evidence that the Minister was made aware any of the information in the case notes referred to in [111]-[112] in Greenwood J’s reasons.”

As to the “very specific and particular circumstances” in EFX17 that suggested that the applicant in that case was not capable of comprehending the section 501CA(3) notice and invitation, Greenwood J stated the following at [134]:
“The circumstances that suggest that the appellant was simply not capable of comprehending the suite of documents handed to him at the Correctional Facility on 4 January 2017 (notwithstanding the virtue of his signature having been secured on the Acknowledgment Form) are these:
(1) The appellant is illiterate in the sense that he is unable to either read or write in his native tongue, Hazaragi.
(2) Consistent with that position, the appellant did not receive any schooling in Afghanistan or Iran apparently as a function of having been raised in a poor farming community in Ghazni Province and having later worked as a shepherd and child labourer in Iran.
(3) He has never learnt to read or write in English.
(4) He was taught how to sign his name when in immigration detention in Christmas Island in 2009. He has, however, participated in an introductory English language course focused on basic conversational English.
(5) Historically, the appellant has been a “client” (patient) of the Prison Mental Health Service since August 2014 having suffered from a schizophrenic illness (which Dr Schramm described in his report of 27 June 2017 as then currently under reasonable control with regular antipsychotic medication).
(6) There seems to be little doubt that the appellant’s schizophrenic condition is at least in part attributable to traumatic events affecting him and his family at the hands of Taliban soldiers.
(7) The IOMS case notes for 4 January 2017 (see [111] of these reasons) note that although the appellant advised that he can understand English while talking, he cannot read or write well. The subsequent case note for 4 January 2017 notes that the appellant has limited English language abilities and expressed concern with reading and understanding the deportation documentation provided to him during the interview. Moreover, the case notes recognise that the appellant requested assistance from another prisoner and from the PLS as he had limited external support in the community. In addition, it seems that the appellant asked for a “special phone call” to be made and sought permission to receive assistance from another prisoner in the Correctional Facility. There is no suggestion that any assistance was available in the form of a special phone call or access to the other prisoner as requested. There is no suggestion in the case notes that an interpreter was available to explain the burden of the documents given to him and for which he duly signed on the acknowledgement page: see [112] of these reasons.
(8) On 6 January 2017 and 2 February 2017, a representative of the PLS spoke to the appellant using a Hazaragi interpreter. Although the appellant was asked on both occasions whether he had received any correspondence or documents from the Department, he told the PLS representative through the interpreter that he had not received any such material. These responses from the appellant on these dates suggest that the appellant had no comprehension or understanding of the fact that he had been given a suite of material by a Correctional Services Officer (which seems to be A Ryan) which constituted documents or correspondence from the Department or any division, section or group within the Department whether part of the “Pipeline Management Unit” or the “National Character Consideration Centre” or the “Character Assessment and Cancellations Branch” of the “Community Protection Division of the “Visa and Citizenship Services Group” of the Department of Immigration and Border Protection."
The Tribunal notes that it appears that the Full Court in EFX17 proceeded on the basis that if section 501CA(3) of the Act had been complied with, the applicant would not have made representations in accordance with the invitation as he had not provided representations within the 28 day time period prescribed in regulation 2.52(2)(b) of the Regulations for making such representations. It appears that the Full Court proceeded on the basis that a failure to make representations within the 28 day time period would result in the revocation power in section 501CA(4) of the Act not being enlivened. The parties in the current proceedings also proceeded on that basis.
That position appears to be consistent with the current state of the law on this issue as enunciated by Stewart J in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 (“BDS20”).
In BDS20, as in this case, the applicant did not make representations within the prescribed time period for doing so. Again, as in this case the Minister’s delegate erroneously disregarded the 28 day time period for making representations. The Minister’s delegate found that the applicant did not pass the character test and that there was not “another reason” to revoke cancellation of the applicant’s visa. The Minister’s delegate therefore concluded that “the power in s 501CA(4) of the Act to revoke the original decision is not enlivened”.
Justice Stewart found that making representations within the prescribed period was a jurisdictional prerequisite to the exercise of the power in section 501CA(4) of the Act. His Honour stated at [52]:
“In those circumstances, the inevitable conclusion is that when the 28 day period expired on 20 July 2017 and the applicant had not yet made representations for the revocation of the cancellation of his visa, the power to revoke the cancellation given by s 501CA was spent and it could not be revived by the lateness of submissions being overlooked or by the Minister giving another invitation.”
The Tribunal is aware that the High Court (Edelman J) recently remitted to the Federal Circuit Court, an application brought in the High Court’s original jurisdiction, for the issue of mandamus compelling the Minister to consider an applicant’s representations for the exercise of the revocation power and section 501CA(4) of the Act, where the applicant made representations outside of the 28 day time period prescribed in regulation 2.52(2)(b) of the Regulations: see Gibson v Minister for Home Affairs [2020] HCATrans 46 (26 March 2020) (“Gibson matter”).
In that case, the applicant is arguing that making representations within the 28 day time period is not a jurisdictional precondition to the exercise of the power to revoke cancellation in section 501CA(4) of the Act. Indeed, the applicant is arguing that the Minister is compelled to consider the exercise of the revocation power regardless of whether representations are made outside the 28 day time period. The Tribunal notes that the decision in BDS20 was handed down after the Gibson matter was remitted to the Federal Circuit Court.
There has been no decision in that case and in any event, the Tribunal considers that it is bound by the decision in BDS20 to the effect that making representations within the prescribed period is a jurisdictional prerequisite to the exercise of the revocation power in section 501CA(4) of the Act.
Evidence
The Tribunal has considered all of the evidence permissibly before it including the evidence of witnesses during the hearing, the documents described in section 501G of the Act (“G Documents” or “G1”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A27 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R4. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure A’ to this decision.
Issues
The Tribunal considers that the issues central to the resolution of the interlocutory issue in dispute are as follows:
·Is the Minister’s compliance with section 501CA(3) of the Act dependent on whether the Minister had “actual” or “constructive knowledge of the applicant’s illiteracy”. That is, if the Minister did not know, or have any way of knowing on the information before him or the Department that the Applicant would not be capable of comprehending the section 501CA(3) notice, does that mean that an otherwise compliant notice fulfils the Minister’s obligations under section 501CA(3) of the Act?
If not,
·Is the Tribunal satisfied that the Applicant was not capable of comprehending the section 501CA(3) notice and invitation?
If so,
·Was compliance with section 501CA(3) of the Act effected when the notice was read and explained to the Applicant by his stepmother or former lawyer?
Actual or constructive knowledge of the Applicant’s “illiteracy”
The Respondent advanced the following submissions in relation to the first issue above:
“36. There is another reason the principles referred to by the majority in EFX17 are not engaged. That is that there is nothing in the evidence which establishes that the Minister was actually or constructively aware of the applicant’s illiteracy at the time his delegate caused the applicant to be given the s 501CA(3) paperwork. That factor distinguishes this matter from EFX17. In EFX17, Greenwood J found at [139] (with whom Rares J agreed generally at [165]) found that “it must have been apparent to the Department either actually or inferentially that the applicant suffered special disadvantage.” Justice Greenwood reached that conclusion because the appellant was familiar to the Minister’s departmental officers in the sense that he had been granted a protection visa as a result of those officers comprehensively considering whether the Minister could be satisfied that the appellant held a well‑founded fear of persecution for a Convention reason, and that all of the relevant circumstances relating to that matter were known to the departmental officers and presumably as a matter of good government record‑keeping, those officers had files and documents recording those matters ([139], see also Logan J in dissent at [237]).
37. The applicant in this matter does not suggest that he has ever made a visa application that required him to provide the kind of information concerning his literacy levels that he now says the Minister should have taken into account when exercising his obligations under s 501CA(3). The visa the applicant held until the cancellation decision was a subclass 444 visa (G8/44). That visa is available to New Zealand residents without application. It is granted to them upon their arrival in the country (cl 444.411 of Schedule 2 to the Regulations).
38. The applicant does not suggest that the Minister (or his Department) knew anything about the applicant’s claimed illiteracy until his lawyer made the representations in response to the s 501CA(3)(b) invitation in November 2019. Speculation as to the knowledge of the Minister in relation to the applicant’s illiteracy as at the time the Minister’s delegate caused the s 501CA(3) paperwork to be given to the applicant is “not sufficient” (Logan J in dissent in EFX17 at [222]).”
I reject the Respondent’s argument that the EFX17 stands for the proposition that the requirements of section 501CA(3) of the Act are met in circumstances where an applicant is not capable of comprehending the section 501CA(3) notice and invitation, if the Minister had no actual or constructive knowledge of that fact.
Greenwood J found that as the applicant in EFX17 was not capable of comprehending the section 501CA(3) notice and invitation, the notice and invitation requirements of that provision had not been met: see [133]-[137].
After so concluding, His Honour went on to say at [139]:
“Two other factors of real importance should be mentioned. …
Second, the appellant was familiar to the Minister’s departmental officers in the sense that he had been granted a protection visa as a result of those officers comprehensively considering whether the Minister could be satisfied that the appellant held a well‑founded fear of persecution for a Convention reason. All of the relevant circumstances relating to that matter were known to the departmental officers and presumably as a matter of good government record‑keeping, those officers had files and documents recording those matters. It must have been apparent to the Department either actually or inferentially that the appellant suffered special disadvantage.”
The Tribunal does not understand Greenwood J’s comments at [139] to qualify the finding that His Honour had already made; that the requirements in s 501CA(3) are not met where an applicant is incapable of comprehending a notice and invitation purportedly made pursuant to that section.
Rather, the second factor raised by His Honour in [139] was an additional reason why the requirements in section 501CA(3) of the Act were not met in that case. That is, His Honour found that it must have been apparent to the Minister that the applicant suffered special disadvantage in circumstances where it would have held information about the applicant obtained when the applicant applied for a Protection visa.
That this was an additional factor for Greenwood J in finding requirements in section 501CA(3) of the Act were not met in that case is completely understandable. His Honour effectively found that it cannot be said that a person is notified of cancellation or invited to make representations seeking revocation of the cancellation if the person is incapable of understanding the notification of invitation. This is especially so, where Greenwood J effectively found that the Minister knew or should have known that the applicant in that case was incapable of comprehending the notice and invitation sent to him. As Logan J commented, such a finding may also be relevant to ministerial consideration under section 501CA(3)(a) of whether it was “appropriate in the circumstances” to give an illiterate applicant, who the Minister knew was illiterate, notice by simply handing them written documents.
Similarly, Rares J found that requirements in section 501CA(3) of the Act were not performed where the notice and invitation given to the applicant were not intelligible to the applicant. Rares J did not indicate that knowledge by the Minister that the notice was not intelligible to the applicant was necessary in order to find that requirements in section 501CA(3) of the Act were not performed.
It is true that unlike the plurality, Logan J found that handing an illiterate applicant the section 501CA(3) notice and invitation, of itself, would not result in that provision not being complied with. Although His Honour did not decide the issue, Logan J commented that section 501CA(3) of the Act may not be complied with where written notice was given to an illiterate applicant in circumstances where the Minister had actual or constructive knowledge that the applicant was illiterate and incapable of comprehending the notice and invitation. Logan J indicated that he did not have to ultimately decide the issue as there was no evidence, as opposed to mere speculation, that the Minister had actual or constructive knowledge that the applicant in that case was illiterate and mentally ill.
The Tribunal notes that, as it has found below it is not satisfied that the Applicant was incapable of comprehending the section 501CA(3) notice, this issue is not determinative in this case. That is, no determinative issue arises as to whether the Minister had knowledge of the Applicant’s inability to comprehend the section 501CA(3) notice because the Tribunal is not satisfied that the Applicant was incapable of comprehending the notice.
Is the Tribunal satisfied that the Applicant was not capable of comprehending the section 501CA(3) notice and invitation?
The cancellation notice
The cancellation notification letter from the Department which was handed to the Applicant on 21 May 2019 was entitled “Notice of visa cancellation under section 501(3A) of the Migration Act 1958”.
The first heading in the notice was entitled “Purpose of this notice”. The second sentence under that heading stated:
“The purpose of this notice is to advise you that on 20 May 2019 your visa was cancelled under s501(3A) of the Migration Act 1958 (the Act)”
The notice then set out the effect of section 501(3A) of the Act.
The second heading in the notice was entitled “Particulars of relevant information”. There were two subheadings under the heading, being “Failure to pass the character test” and “Imprisonment on a full-time basis”.
Under the first subheading the notice relevantly stated:
“Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you not pass the character test on the following ground:
You have a substantial criminal record within the meaning of s501(6)(a) on the basis of s501(7)(a),(b) or (c) of the Act.
Under s501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 3 May 2019 you were convicted of Assaults occasioning bodily harm whilst armed/in company in public place while adversely affected by intoxicating substance and sentenced to 18 months imprisonment.”
Under the second subheading the notice indicated that the decision-maker was satisfied that the Applicant was serving a sentence of imprisonment on a full-time basis when the decision to cancel his visa was made.
The third heading was entitled “Your visa status”. The first sentence under this heading stated:
“Your visa has been cancelled and you no longer hold a visa.”
The fourth heading was entitled “Opportunity to seek revocation of the original decision to cancel visa“.
Under the fourth heading the notice relevantly states:
“While your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations to the Minister about revoking the decision to cancel your visa under s501(3A)(“the original decision”).
You are hereby invited to make representations to the Minister about revoking the original decision. The representations must be made in accordance with the instructions outlined below, under the headings ‘How to make representations about revocation of the original decision’ and ‘Timeframe to make representations about revocation’.
…”
The fifth heading is entitled “How to make representations about revocation of the original decision”. Under this heading the notice provides information about the effect of regulation 2.52 (4) to (6) of the Regulations.
The sixth heading is entitled “Timeframe to make representations about revocation”. The first sentence under this heading provides:
“Under regulation 2.52(2), any representations you may wish to make in relation to the revocation of the original decision must be made within 28 days after you are given this notice.”
The second and third sentences under the heading provide:
“That means, in order for your representations to be considered, the Required Information (see explanations above) MUST be received by the Department within 28 days after you are taken to have received this notice.
As this notice was given to you by hand, you are taken to have received it when it was handed to you.”
Under the subheading entitled “Providing the Required information” the notice relevantly states:
“If you decide to make representations to the Minister to seek revocation of the original decision, it is essential that the Required Information is received by the Department within 28 days after you are taken to have received this notice as this timeframe cannot be extended.”
…
If the Required Information is received outside the prescribed time frame of 28 days, the Minister or his/her delegate is not able to consider your representations because they would not have been made in accordance with the invitation (as set out in this notice), as required by s501CA(4)(a) of the Act.”
As mentioned previously, neither party contended that the content of the notice did not comply with the requirements in section 501CA(3) of the Act or regulation 2.52 of the Regulations. Rather, the Applicant argued that section 501CA(3) of the Act was not complied with because, like the applicant in EFX17, the Applicant was not capable of comprehending the notice including the invitation to make representations, which he had received.
Evidence of literacy

In the present case, the Tribunal had before it evidence, including the following, which was relevant in determining whether the Applicant had the capability of comprehending the notice and invitation issued pursuant to section 501CA(3) of the Act:
·The Applicant was born and raised in New Zealand to a father who was ethnically Samoan and a mother who was ethnically Maori.
·The Applicant indicated that English was his first and only language. That is, the Applicant does not speak, read or write in a language other than English.
·The Applicant completed three years of primary school in New Zealand before arriving in Australia. In New Zealand, the Applicant was taught in the English language.
·The Applicant arrived in Australia when he was about eight years old. He completed years 4 to 10 in Australia. In Australia, the Applicant was taught in the English language. The Applicant also undertook studies in English at school.
·The Applicant indicated that he was required to repeat years five and six in Australia as he had undiagnosed learning difficulties which prevented him from attaining the necessary level of competence in his studies in each of the first times the Applicant undertook years five and six. The Applicant agreed with the proposition that students who did not obtain the necessary level of competence in their studies were held back and only allowed to advance once they attained the necessary level of competence in any given year.
·The Applicant indicated that he had successfully completed year 10. He said that he thought that he obtained a certificate attesting to his completion of year 10.
·The Applicant indicated that he discontinued his studies while attending year 11.
·Prior to the Applicant’s former solicitor writing to the Department on 28 November 2019 (and the Minister by letter of 26 November 2019), there was no evidence, or even suggestion before the Minister that the Applicant was “illiterate” or had “learning difficulties”. The first the Minister or the Department knew of this claim was in November 2019 when it was advanced by the Applicant’s former solicitor as one of a number of reasons for the Applicant failing to make representations within the relevant period after being handed the section 501CA(3) documents in May 2019.
·Unlike in EFX17, the Applicant in the present case does not claim to have any severe mental health condition, such as schizophrenia, which may be said to impact on the Applicant’s ability to comprehend the section 501CA(3) notice.
·The Applicant was taken into immigration detention on 22 November 2019. In preparation for removal of the Applicant from Australia, a Departmental officer interviewed the Applicant on 22 November 2019. A record of that interview was before the Tribunal. In that record it is recorded that no interpreter was required and the interview proceeded in English as it was agreed between the officer and the Applicant that they were able to understand each other in English. In the record of interview the Departmental officer indicated that they were satisfied that the Applicant fully comprehended the officer and that the Applicant had a comprehension level required to meaningfully participate in the interview. The record of interview indicated that the Applicant did not disclose any medical concerns or conditions. The record of interview indicates that the Applicant told the officer that the Applicant was fluent in English, and that the Applicant had indicated that his reading proficiency, writing proficiency and speaking proficiency in English was “fluent”. The record of interview notes that the Applicant indicated that he had completed year 10 at Banyo High School.
·The Applicant provided to the Tribunal a participant workbook for the “Do-It Program” by Lives Lived Well completed by the Applicant. The Applicant also provided the Tribunal with the Lives Lived Well document entitled “My Relapse Prevention and Management Plan”. The Applicant relied upon these documents as evidencing insight into the Applicant’s offending and that he had taken steps to rehabilitate himself by undertaking the program and completing the plan.
·The participant workbook indicated that the workbook was to be completed with all homework done. However, the Applicant at the hearing initially indicated that all of the relevant questions in the workbook were read out during class and that he provided answers in writing to the questions. Later on, the Applicant claimed that some of the questions were read out and others he read himself before answering them.
·There was no expert evidence before the Tribunal to the effect that the Applicant was illiterate, had learning difficulties or that the Applicant did not have the capacity to comprehend the contents of the notification and invitation handed to him on 21 May 2019. While I have no expertise in literacy or learning difficulties, from what I can discern from the Lives Lived Well documents completed by the Applicant, the Applicant has some ability in reading and writing in English. It is clear that the Applicant does not appear to have very good spelling or grammatical skills. However, the Tribunal does consider that it is apparent that the Applicant has the ability to provide written answers to questions. In addition, the Applicant appears to have some reading and/or listening comprehension skills.
·The Applicant has been gainfully employed for most of his time after he left school in year 11. The Applicant has worked at a fish and chip shop, a PVC business, a mechanic shop, an upholstering business, in a post office sorting mail and packaging, in a demolition business, at BBQ’s Galore, at Amart, in road construction, as a removalist and doing factory work.
·The Applicant made a statement dated 28 November 2019. At the hearing the Applicant indicated that the statement was made with the assistance of his former lawyer. At the hearing the Applicant indicated that after his former lawyer typed up the statement, she read it back to him. The Applicant indicated that the contents of the statement were all true and correct. That statement indicated that the Applicant received no assistance in reading the section 501CA(3)notice when he was handed it in May 2019 in prison. Paragraph 6 and 7 of that statement stated:
“Nobody informed me about the actual documents and what needed to be sent within 28 days, for example the Revocation Request form in itself would have been sufficient. I was under the impression all documents were required, including the Personal Circumstances form.
I got in contact with my family and explained that I had received some papers to fill out which required me to send it back in the 28 days.”
·The above portion of the statement, on its face, may tend to indicate that the Applicant discerned for himself by reading the notice that he was required to fill out paperwork and return it within 28 days. At the hearing the Applicant indicated that when he received the bundle of documents he began reading the first page and “freaked out” at the volume of the documents and that the first page contained some words he was unfamiliar with and ceased trying to read the document. The Applicant admitted that he could read “28 days” but indicated that the part of the notice which mentioned the 28 day time period for responding was not contained on the first page which he had read at the time. That admission may indicate that the Applicant has at some point read the notice. It is possible that someone else read the notice to him and showed him that part of the notice which indicated that a response was necessary within the 28 day time period. However, it would seem unlikely that someone would take the Applicant through the notice and pointing out certain important parts of the notice if the Applicant was incapable of reading those parts of the notice.
Against the above evidence, which might tend against satisfaction that the Applicant was not capable of comprehending the section 501CA(3) notice and invitation, the following evidence before the Tribunal might suggest otherwise:
·A number of statements in support of the Applicant provided to the Department and the Tribunal from November 2019 onwards indicate that the Applicant had learning difficulties and problems with reading and writing.
·The Applicant provided the Tribunal with an expert report about his younger half-brother from 2014 when the Applicant’s half-brother was 9 years old. That report indicated that the Applicant’s half-brother at the time had delayed language skills and significant difficulties using language for problem-solving.
·The Applicant’s stepmother, the Applicant’s half-brother’s mother, gave evidence at the hearing that it was her view that the Applicant suffered from the same types of learning difficulties that her son did.
·It was the Applicant stepmother’s evidence that her view was that the Applicant would not have been capable of comprehending the section 501CA(3) notice and invitation.
·The Applicant’s stepmother also gave evidence that the Applicant’s father, her partner, had learning difficulties and attributed those learning difficulties to the Applicant’s father’s inability to read and write in English. However, the Tribunal notes that the stepmother’s evidence was that the Applicant’s father was born and raised in Samoa and migrated to New Zealand when he was 16 years of age. The stepmother’s evidence was that the Applicant’s father never attended any form of formal education in any country.
·There was evidence before the Tribunal from a number of the Applicant’s family members that his family members often would provide him with assistance owing to his learning difficulties. That included assisting the Applicant in securing employment.
The Tribunal is not satisfied that the Applicant was not capable of comprehending the section 501CA(3) notice and invitation. The Tribunal is not satisfied that the notice and invitation given to the Applicant were not intelligible to the Applicant.
The circumstances of the Applicant in the current matter are very different from those of the applicant in EFX17.
The applicant in that case was of the Hazara ethnic minority from Afghanistan. His native tongue was Hazaragi. The applicant was completely illiterate in Harazagi in the sense he could not read or write at all in that language as he had never attended schooling. He had worked as a shepherd and a child labour. He had never learnt to read or write in English. He had schizophrenia attributable in part to trauma caused by the Taliban. It is apparent that the applicant in EFX17 had very little, if any capability, with the English language.
In the current case the Applicant’s first and only language is English. He completed schooling to year 10 and left school in year 11. All of his schooling has been conducted in the English language. He has spent all of his life in Australia and New Zealand, where the most commonly used language is English. He has worked in a number of different occupations which would have required some functional or rudimentary understanding of the English language. He does not have any psychological condition, such as schizophrenia, which may impact on his ability to comprehend English. Unlike in the EFX17, it is clear to the Tribunal that the Applicant does have a degree of literacy in the English language. That is, as is clear from the Lives Lived Well documents which he completed, the Applicant does have some ability to read and write in the English language. The Applicant admitted as much in the hearing. That is consistent with his admission to the Departmental officer during the interview on 22 November 2019 regarding his literacy. The question is whether the Applicant’s level of literacy is such that he was capable of comprehending the section 501CA(3) notice and invitation. Whether that notice was intelligible to him. Based on all the evidence before the Tribunal, including those matters referred to above in paragraphs 64 and 65, the Tribunal is not satisfied that the Applicant was incapable of comprehending the section 501CA(3) notice.
The Tribunal accepts that the Applicant does not possess mastery of the English language. However, upon considering all the evidence that is before the Tribunal, the Tribunal is not satisfied that the Applicant did not have a sufficient level of literacy to comprehend the contents of the notice which were required to be given to the Applicant pursuant to section 501CA(3) of the Act. The Tribunal is not satisfied that the Applicant’s level of literacy was such that he was not capable of comprehending that his visa had been cancelled, that it was cancelled because he had been sentenced to a period of imprisonment of more than 12 months and that he had 28 days after being given the notice to make representations seeking for the cancellation of his visa to be revoked.
The Tribunal notes that there was some evidence before the Tribunal, discussed above in paragraph 64, including the Applicant’s statement of 28 November 2019 and some of his comments at the hearing, which suggested that the Applicant had read the documents and knew that he had 28 days to make representations seeking revocation of the cancellation decision. As mentioned previously, at the hearing the Applicant said that he began reading the first page of the notice but did not read any further because he was unfamiliar with some words and was discouraged by the large number of documents. The Tribunal considers that in either case, the Tribunal reaches the same conclusion. Either the Applicant read and understood the effect of the notice and invitation, or he stopped reading the document after the first page even though he was capable of comprehending the notice. The Tribunal is not satisfied that the Applicant was not capable of comprehending the notice. The question is not whether the Applicant did not comprehend the contents of the notice because he did not read it, the question is whether the Applicant was capable of comprehending the notice. The Tribunal is not satisfied that the Applicant’s level of literacy was insufficient for him to comprehend the notice and invitation. That is especially so in the absence of any expert evidence to suggest as much.
Was compliance with section 501CA(3) of the Act effected when the notice was read and explained to the Applicant by his stepmother or former lawyer?
As I am not satisfied that the Applicant was incapable of comprehending the section 501CA(3) notice, it is unnecessary to determine the third issue identified above. However, the Tribunal considers that it is clear from EFX17 that compliance with section 501(3A) must be effected when the Applicant is given the notice. That is, events subsequent to the notice being given to the Applicant which are not caused by the Minister in an attempt to comply with section 501CA(3) of the Act, will not result in compliance with that section.
That is clear from the reasons of both Greenwood and Rares JJ. However, Greenwood J does appear to suggest, at [138] that compliance with section 501CA(3) may have been effected if the Minister had taken action to ensure that the applicant was capable of comprehending the notice when it was given to him, for example by arranging an interpreter/translator to be present to read and explain the notice in the applicant’s native language at the time that it was handed to him.
Rares J explicitly rejected the Minister’s argument that section 501CA(3) was complied with in EFX17 when the Minister released the section 501CA(3) notice to the applicant’s representative pursuant to a freedom of information request some months after the section 501CA(3) notice was given to the applicant. His Honour stated at [186]:
“I reject the Minister’s argument that because, on 1 June 2017, the appellant’s migration agent received a copy of the 3 January 2017 notice and invitation, this somehow reset the 28 day time period, as the Minister argued. The later provision of documents under a freedom of information request was not compliant with s 501CA(3). It could hardly be correct to characterise the response to a request for documents under a different statute as belated compliance with the important statutory process that s 501CA(3) mandated.”
Therefore, in the current case, if it had been found that the Applicant was incapable of comprehending the notice, the fact that the Applicant’s stepmother and/or his lawyer read and explained the notice to the Applicant months after he was given the notice would not result in compliance with section 501CA(3) of the Act at that point.
Form of decision
The Tribunal has found that the Respondent lawfully complied with the requirements of section 501CA(3) when the Applicant was handed the notice of cancellation on 21 May 2019.
The Tribunal has found that, as the law currently stands, making representations about revocation within the 28 day time period prescribed in regulation 2.52(2)(b) of the Regulations is a jurisdictional prerequisite to the exercise of the revocation power in 501CA(4) of the Act. That is, unless an applicant has made representations about revocation within the prescribed time period, the power to revoke cancellation of a visa is not enlivened.
In the current case, the Applicant did not make representations about revocation within the relevant time period. Therefore, the power to revoke the cancellation of the Applicant’s visa was not enlivened and remains so before this Tribunal.
The Minister’s delegate erroneously proceeded on the basis that making representations within the prescribed period was not a jurisdictional prerequisite to the exercise of the revocation power. Instead, the Minister’s delegate determined that they could consider representations made entirely outside the prescribed period and that if there was “another reason” to revoke the cancellation of the visa, the revocation power would be enlivened.
The Minister’s delegate’s decision regarding the operation of section 501CA(4) of the Act in this case is similar to the Minister’s delegate’s decision in BDS20. In BDS20, Stewart J found that although the Minister’s delegate erred in determining that the applicant in that case had made representations within the prescribed period, His Honour found that the Minister’s delegate reached the only conclusion legally available to them, that the revocation power in section 501CA(4) of the Act was not enlivened. His Honour stated at [53]:
“Since the Minister lacked jurisdiction to make any decision to revoke the cancellation of the applicant’s visa, he could not lawfully have reached any conclusion other than the one that he did, namely that his power to revoke the cancellation was not enlivened. The fact that he made it for the wrong reason, that is to say on the basis of the jurisdictional fiction that s 501CA(4)(a) was satisfied and that the jurisdictional fact in s 501CA(4)(b) was not satisfied does not make any difference – he simply lacked the power to do anything other than to, in effect, reject the application which is what he did.”
As in BDS20, ultimately the Minister’s delegate’s decision in this case was that the revocation power in section 501CA(4) of the Act was not enlivened. Although, obviously for different reasons, that is the decision that the Tribunal has reached.
Therefore, the Tribunal affirms the Minister’s delegate’s decision. That approach is consistent with the decision in BDS20 and the approach taken by Senior Member Tavoularis in Sillars and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 994.
Decision
The decision under review is affirmed.
I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati
..............................[SGD].........................................
Associate
Dated: 11 September 2020

Date of hearing:

21 August 2020

Solicitors for the Applicant:

Felicity Rounsefell by video-link

Mode Migration Services

Solicitor for the Respondent:

Samuel Cummings by video-link

Sparke Helmore Lawyers

Attachment A
EXHIBIT REGISTER
File No: 2020/3934................................................................................................................
Between: Uhrle...................................................................................................... (Applicant)
And:Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs........................................................................................................... (Respondent)

Heard on: 21 August 2020………………………………………………………………………..
At:Brisbane..................................................................................................................

Exhibit Number	Description of Exhibit	Party	Date of Document	Date Received
Respondent’s Material
G1	Section 501 G-Documents (pages 1 to 166)	R	-	13 July 20
R1	Respondent’s Tender Bundle Relevant Documents (pages 1 to 34)	R	-	14 August 20
R1	Annexure A to Respondent’s consolidated submissions re Applicant’s non-compliance with s 501CA(4)(a): Applicant’s signed acknowledgement of receipt of decision	R	20 August 20	20 August 20
R3	Annexure B to Respondent’s consolidated submissions re Applicant’s non-compliance with s 501CA(4)(a): Letter to NCCC requesting revocation, dated 28 November 2019	R	20 August 20	20 August 20
R4	Annexure C to Respondent’s consolidated submissions re Applicant’s non-compliance with s 501CA(4)(a): Position details of the Officer of the Minister	R	20 August 20	20 August 20
Applicant’s Material
A1	Statutory Declaration of John Ellis Olding	A	30 June 20	29 July 20
A2	Statutory Declaration of Aimee Burgess-Clout	A	30 June 20	29 July 20
A3	Statutory Declaration of Dion Enari	A	30 June 20	29 July 20
A4	Statutory Declaration of Christine Louise Fabila	A	29 June 20	29 July 20
A5	Statutory Declaration of Adrian Desmond Francis Fabila	A	29 June 20	29 July 20
A6	Statutory Declaration of Ryan Doolan	A	29 June 20	29 July 20
A7	Statutory Declaration of Sabrina Neria	A	30 June 20	29 July 20
A8	Statutory Declaration of Tina Hickes	A	29 June 20	29 July 20
A9	Statutory Declaration of Tahlita Uhrle	A	30 June 20	29 July 20
A10	Statutory Declaration of Ruanui Bateman	A	29 June 20	29 July 20
A11	Statutory Declaration of Nicolas Grant Crotty	A	30 June 20	29 July 20
A12	Statutory Declaration of Elih Baillie	A	30 June 20	29 July 20
A13	Statutory Declaration of Marlie Doolan	A	29 June 20	29 July 20
A14	Statutory Declaration of Isaac Uhrle (JNR)	A	30 June 20	29 July 20
A15	Statutory Declaration of Kristy Louise Olding	A	30 June 20	29 July 20
A16	Statutory Declaration of Sera Lalagavesi	A	26 June 20	29 July 20
A17	Statutory Declaration of Stacey Mataroa	A	30 June 20	29 July 20
A18	Statutory Declaration of Jasmine Lee Olding	A	30 June 20	29 July 20
A19	Lives Lived Well Workbooks: · Do-It Program · My Relapse Prevention Plan	A	-	29 July 20
A20	Report for Gene's younger brother re learning literacy issues	A	6 November 14	29 July 20
A21	Jan Uhrle letter of support	A	30 June 20	29 July 20
A22	Applicant’s Step Nan letter of support	A	26 June 20	29 July 20
A23	Images submitted by the Applicant, labelled attachments A23 to A56	A	-	29 July 20
A24	Statutory Declaration of Kristy Louise Olding (three pages)	A	17 August 20	19 August 20
A25	Images of an envelope addressed to the Applicant (two images)	A	-	19 August 20
A26	Statutory Declaration of Jan Uhrle	A	4 August 20	22 August 20
A27	Email from Applicant’s representative indicating she holds a Bachelor of Psychological Sciences	A	22 August 20	22 August 20