Minister for Immigration and Border Protection v EFX17

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Gageler,Keane,Edelman,Steward JJ
• Judgment Date: 10 March 2021
• Neutral Citation: [2021] HCA 9
• Court: High Court
• Docket Number: B43/2020
• Date: 10 March 2021

[2021] HCA 9

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Keane, Edelman And Steward JJ

B43/2020

Minister For Immigration and Border Protection

Appellant

and

EFX17

Respondent

Representation

G T Johnson SC with B D Kaplan for the appellant (instructed by Clayton Utz)

A M Mitchelmore SC with D K Fuller for the respondent (instructed by Prisoners' Legal Service Inc)

Migration Act 1958 (Cth), ss 496, 497, 501(3A), 501CA(3).

Migration Regulations 1994 (Cth), regs 2.52, 2.55.

Immigration — Cancellation of protection visa — Notice of cancellation — Where delegate of Minister cancelled respondent's visa under s 501(3A) of Migration Act 1958 (Cth) — Where pursuant to duties in s 501CA(3) letter from delegate and enclosures sent explaining decision to cancel respondent's visa and opportunity to make representations about revoking decision — Where letter and enclosures given to respondent by corrective services officer — Where letter incorrectly stated date on which respondent taken to have received notice — Whether Minister complied with duty to “give” written notice and particulars and “invite” representations under s 501CA(3) — Whether capacity of respondent to understand written notice, particulars, and invitation relevant to whether duties in s 501CA(3) were performed — Whether Minister or delegate required personally to perform duties in s 501CA(3) — Whether Minister failed to invite representations as letter did not specify period within which to make representations in accordance with Migration Regulations 1994 (Cth).

Words and phrases — “capacity to understand”, “deliver”, “give”, “in the way that the Minister considers appropriate in the circumstances”, “incapacity”, “invite”, “method of delivery”, “notice”, “ordinary meaning”, “personally to perform”, “requesting formally”, “service”, “substantive content”, “within the period and in the manner ascertained in accordance with the regulations”.

ORDER

Appeal dismissed.

Kiefel CJ, Gageler, Keane, Edelman AND Steward JJ.

Introduction

1 This appeal concerns the meaning and operation of s 501CA(3) of the Migration Act 1958 (Cth), which requires the Minister to give a person whose visa has been cancelled particular information and an invitation to make representations within the period and in the manner ascertained in accordance with the Migration Regulations 1994 (Cth). The Minister appeals from a decision of the Full Court of the Federal Court of Australia, which held by majority that (i) the sub-section required that the recipient be capable of understanding the information and invitation and (ii) the information and invitation be given to the recipient by the Minister, or the Minister's delegate, personally.

2 For the reasons below, the Minister's grounds of appeal on these two issues should be upheld. But the appeal should be dismissed on the basis of the respondent's notice of contention; the decision of the Full Court should be upheld because the invitation to make representations did not provide a way to ascertain the period within which the representations were required to be made by the Migration Regulations.

Background

3 The respondent to this appeal, EFX17, is a citizen of Afghanistan. He arrived in Australia in 2009, and on 16 December 2009 he was granted a protection visa. In 2016, he was convicted of the offence of committing acts intended to cause grievous bodily harm under s 317 of the Criminal Code (Qld). He was sentenced to seven years' imprisonment.

4 On 3 January 2017, a delegate of the Minister made a decision to cancel the respondent's visa under s 501(3A) of the Migration Act. This decision was described in a four-page letter from the delegate of the Minister to the respondent together with “enclosures”. The enclosures accompanying the letter included an “Important Information sheet”, a “Revocation Request Form”, a “Personal Circumstances Form”, forms for “Advice by a migration agent/exempt person of providing immigration assistance” and “Appointment or withdrawal of an authorised recipient”, information about legal aid assistance in Australia, provisions of the Migration Act and Migration Regulations, and other information.

5 The letter from the delegate was dated 3 January 2017. In the letter, the delegate explained, among other things and by reference to various provisions of the Migration Act, that under s 501(3A) of the Migration Act the Minister was required to cancel the respondent's visa because the delegate was satisfied that the respondent had a “substantial criminal record”, having satisfied the requirement of being sentenced to a term of imprisonment of 12 months or more 1.

6 In the letter, the delegate also explained that the respondent had an opportunity to make representations about revoking the decision to cancel his visa. The delegate said, further, that the representations “must be made in accordance with the instructions outlined below”. Those instructions included a section entitled “Time-frame to make representations about revocation”. In that section it was explained that representations must be made within the prescribed timeframe, which was said to be “within 28 days after you are taken to have received this notice”. It was also said:

“As this notice was transmitted to you by email, you are taken to have received it at the end of the day it was transmitted.”

7 The delegate's letter and the enclosures were sent by the delegate to the Brisbane Correctional Centre as attachments to an email sent at 2.51 pm on 3 January 2017. The body of the email emphasised the importance and urgency of providing the documents to the respondent and asked for the respondent to complete a formal notice acknowledging receipt or, alternatively, for the recipient of the email to acknowledge receipt.

8 The letter and enclosures were handed to the respondent by an officer of the Queensland Department of Corrective Services on 4 January 2017. The case note that described the provision of the letter and enclosures to the respondent described a number of matters which the respondent was told orally, including that his visa had been cancelled due to his substantial criminal record and that he could request a revocation of the cancellation by writing to the Australian Border Force within 28 days. The author of the case note also observed that the respondent “advised that he can understand English while talking, but cannot read or write well. He also advised that he wishes to leave Australia and will not be seeking a revocation of the cancellation.”

9 The respondent signed the formal acknowledgement of receipt, and he dated that acknowledgement 4 January 2017. But although the respondent provided the formal acknowledgement of receipt of the letter and enclosures, it appears that he was confused about the contents. His native language is Hazaragi. He spoke broken English, his ability to read or write in English was limited, and

he had been suffering from a schizophrenic illness due to substance abuse and traumatic events at the hands of Taliban soldiers. A further case note entry on 4 January 2017 recorded that the respondent “expressed concern with reading and understanding the deportation documentation provided to him during the interview”

10 In the further case note entry dated 4 January 2017, it was recorded that the respondent asked for assistance from another prisoner and from the Prisoners' Legal Service and requested a special phone call to enable him to speak with another prisoner. Although there is no record of whether any assistance was provided at that time, a representative from the Prisoners' Legal Service spoke with the respondent using an interpreter on 6 January 2017. The Prisoners' Legal Service was subsequently appointed to represent the respondent.

11 On 9 June 2017, following enquiries by the Prisoners' Legal Service, and their receipt of documents relating to the respondent's application for a protection visa and the cancellation of it, the Prisoners' Legal Service wrote to the Department of Immigration and Border Protection (“the Department”) requesting that the notice of cancellation of the respondent's visa be reissued because the respondent's capacity to understand the nature of the visa cancellation and revocation process was “significantly impaired”. It was asserted that all the communications between the Prisoners' Legal Service and the respondent had been through the use of a Hazaragi interpreter but even with that interpreter the respondent had difficulty understanding advice and instructions on simple topics.

12 On 15 August 2017, the Department wrote to the Prisoners' Legal Service advising that the notice of cancellation of the respondent's visa would not be reissued because it was “legally effective”.

Section 501CA of the Migration Act and related provisions

13 Section 501CA(1) of the Migration Act provides that s 501CA applies if the Minister makes a decision (“the original decision”) under s 501(3A) to cancel a person's visa. Section 501CA(3) provides:

“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) sets out conditions precedent for the Minister to revoke the original decision, including that “the person makes representations in accordance with the invitation”.

14 As s 501CA(3)(b) contemplates, the Migration Regulations provide for the period and manner in which the representations should be made. These requirements include that the...