Uhrle and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision to affirm the non-revocation of a mandatory cancellation of a Class TY Subclass 444 Special Category visa. The applicant, Mr Uhrle, contended that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs had failed to comply with the requirements of section 501CA(3) of the *Migration Act 1958* (Cth). Specifically, the applicant argued that he was not properly notified of the cancellation decision and invited to make representations in accordance with the statutory provisions, and that any representations made were not in accordance with the invitation, including within the prescribed time.

The central legal issues before the court were whether the Minister's compliance with section 501CA(3) was contingent on actual or constructive knowledge of the applicant's illiteracy, and if so, whether the applicant was incapable of comprehending the notice and invitation. The court was also required to determine if compliance with section 501CA(3) was effected when the notice was read and explained to the applicant by his stepmother or former lawyer. The court considered the application of the principles established in *EFX17 v Minister for Immigration and Border Protection* [2019] FCAFC 230.

The court reasoned that the Minister's obligation under section 501CA(3) to give notice and invite representations was not dependent on the Minister's actual or constructive knowledge of the applicant's illiteracy. The court distinguished the present case from *EFX17*, noting that in *EFX17*, the applicant's illiteracy and special disadvantage were apparent to departmental officers due to prior interactions and visa applications. In this case, there was no evidence that the Minister or the Department was aware of the applicant's claimed illiteracy at the time the section 501CA(3) paperwork was issued. The court found that the applicant's subclass 444 visa was available to New Zealand residents without application and was granted upon arrival, and there was no indication that the applicant had previously provided information regarding literacy levels that would have alerted the Department. The court concluded that the notice provided to the applicant, which was in English, was otherwise compliant with the requirements of section 501CA(3), and that the applicant had not established that he was incapable of comprehending it. The court further held that the explanation of the notice by his stepmother or former lawyer did not constitute compliance with the statutory requirement for the Minister to give notice and invite representations.

The court affirmed the decision under review.