Minister for Immigration and Border Protection v EFX17 [2020] HCATrans 211 (4 December 2020)

Last Updated: 4 December 2020

[2020] HCATrans 211

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B43 of 2020

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Appellant

and

EFX17

Respondent

KIEFEL CJ
GAGELER J
KEANE J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 4 DECEMBER 2020, AT 9.46 AM

Copyright in the High Court of Australia
KIEFEL CJ: In accordance with the current practice, I will announce the appearances.

For the appellant, MR G.T. JOHNSON, SC appears with MR B.D. KAPLAN. (instructed by Clayton Utz)

For the respondent, MS A.M. MITCHELMORE, SC appears with MR D.K. FULLER. (instructed by Prisoners’ Legal Service Inc)

KIEFEL CJ: Yes, Mr Johnson.

MR JOHNSON: Thank you, your Honour. Your Honours, I hope, will have received our outline this morning.

KIEFEL CJ: Thank you.

MR JOHNSON: Because of the relative length of the judgments, I thought it might be useful at the commencement to show what I think ultimately are the key paragraphs in relation to the reasoning of the judges in relation to the chief points that we have framed.

The parties, as your Honours will of course have noticed, have used the expression “capacity matters” as a shorthand one to capture the idea that is involved in the majority of judgments below, that the Minister is required, in the exercise of his power under section 501CA(3) to take into account the former visa holder’s literacy, capacity to understand English, mental capacity and health, position in custody and the facilities that would be available to him in custody. So, when I use the expression “capacity matters” it is in that sense as per the formulation of the issue in paragraph 3 of the outline.

The two points of construction are related to what the Minister’s obligation is under section 501CA(3)(a). The Minister says that the text of that provision requires him to give the former visa holder the two things that are clearly identified in subparagraphs (i) and (ii), that is a written notice that sets out the original decision, which may be no more than that your visa has been cancelled under section 501(3)(a) of the Act and particulars of relevant information. That expression is defined in subsection (2) of section 501CA and because of the way in which it is there defined ‑ I will just go to that quickly – relevantly, under section 501CA(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.

In this case, it is (a) that we are concerned with and, in relation to that, of course, that expression has been examined in a series of cases by this Court, SZBYR, M174 probably being the most recent exemplar, and we probably do not need to go beyond that. But my essential point there is that these are two readily identifiable things and what the Minister says is that the requirement is to physically deliver them, that is, to give them. The Minister says that is the ordinary sense of the word and the Minister says that that is supported by WACB which affirms in a similar context that that is the relevant sense of the word, the delivery of those things.

Now, I did promise to go early to what I thought were the key paragraphs of the judgments and I will do that now. It might take me I think a few minutes, but I think probably only about five, and I think it might be useful.

GAGELER J: Mr Johnson, is it an assumption of the Act the written notice referred to in (i) will be in English?

MR JOHNSON: Well, there is that assumption, yes. Yes, right.

GAGELER J: And the particulars?

MR JOHNSON: And the particulars, and we say that there is no need for those things to be translated. Your Honours, if I could start with Justice Greenwood, and the pinpoint paragraphs that I am proposing to go to in Justice Greenwood are 89 to 90, 132 to 133, and 136 to 137. If I could just go to paragraph 89. I will not read all of 89, but your Honours will see that at the commencement of that paragraph, his Honour uses the expression “irreducible minimum standard”. And then about two‑thirds of the way down the paragraph, still on that same page, his Honour says:

Thus, even though the Minister (or his delegate) may have considered the “way” selected for giving written notice of the visa cancellation decision and the “relevant information” “appropriate in the circumstances”, the question is whether, having regard to the statutory scheme of s 501(3A) and s 501CA, the way selected by the Minister or his delegate as appropriate, in the circumstances, discharges the statutory obligation to give the former visa holder notice setting out the cancellation decision and particulars of it. In other words, the way selected by the Minister or his delegate as “appropriate in the circumstances”, is simply directed to the way of giving the notice and particulars and does not diminish the scope, burden and standard of the statutory obligation to give notice.

Now, it is in the next bracket of paragraphs that I will take your Honours to that that is filled out, but just note perhaps this point, that that is the paragraph where he flags this idea of irreducible minimum standard and this is in relation to paragraph (a) of section 501CA(3).

KEANE J: He does it by referring to “giving notice” rather than giving “a notice”.

MR JOHNSON: Right, exactly, exactly and that is an important point, your Honour. In paragraph 90, he says:

So too, the obligation to “invite the person” to make representations must meet the statutory standard of a real and meaningful invitation to make representations –

Needless to say, those words “real and meaningful” and, indeed, “irreducible minimum standard” are not actually in the provision. To find out what his Honour means by them we go first to paragraphs 132 to 133 and here his Honour is talking particularly about paragraph (a). Paragraph 132 basically poses the question - the question as his Honour saw it – I will not read that aloud. I note that the – at the very tail of the paragraph his Honour also uses the word – the expression “state of considered appropriateness” being conditioned by the phrase “in the circumstances” and then he says:

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”.

Then his Honour goes on to look at factual matters as to why he thought that the applicant was not capable of comprehending the suite of documents. Then, if we go to paragraphs 136 and 137, by this stage his Honour has made the finding at the end of 135 in the last two lines, that the Minister had not met:

the irreducible minimum standard of giving the appellant notice of the cancellation decision and the particulars of relevant information.

Then he moves on to consider paragraph (b), the invitation requirement. He says:

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”.

Paragraph 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 -

The next paragraph is not a statement of principle, but it is interesting because it goes on to – it sets out the sorts of steps which his Honour thought could have been taken to alleviate the problem. And part of our submission is that it really rather illustrates the sort of inquiry that the Minister would need to be able to make to attempt to achieve the standard which has been imposed. I also mention paragraph 139, but it is not as important as what I have just read.

Then, if one goes Justice Rares, the first stop is paragraph 171. He says:

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.

And then if one goes to 173 and starts in the third line, he notes that:

Relevantly, reg 2.52(3) provides that such a response must be in English or with English translations.

But then he says:

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.

And then in 175, his Honour says:

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” ‑

Justice Logan was in dissent and ‑ ‑ ‑

EDELMAN J: Do you understand Justice Rares to be accepting a requirement of any knowledge by the Minister, or is the approach that is being taken one which requires that the invitation be actually meaningful irrespective or whether the Minister has knowledge of any capacity issues?

MR JOHNSON: The latter. He is requiring that it be intelligible in fact in paragraph 173, and at paragraph 175 that it be “actually meaningful to its intended individual recipient”. Justice Logan applied WACB, to which the parties have referred, and probably the only significant paragraphs – I do not say the only significant paragraphs ‑ but probably the only paragraphs I need mention in that respect are 231, 233 and 245. At 231 his Honour says:

As to textual considerations, a starting, and perhaps also finishing, point is that the text of s 501CA(3) does not distinguish between classes of holders of cancelled visas. On its face, the subsection applies indifferently to all persons subject to a cancellation decision, some of whom may be literate in English or of full mental capacity, some of whom may not be and some of whom may be of varying intermediate degrees of literacy and intellect. And the Minister or a delegate may or may not know of the nature and extent of any illiteracy in English at the time when the visa cancellation decision is made.

Then reference is made by his Honour to WACB, and I will come more to that in a moment, but his Honour refers to what was said in WACB at paragraph [43] in the context of “notified”. WACB also directly spoke of the word “give”, but your Honours will see that his Honour Justice Logan has placed in bold the lines at the end of that paragraph which read:

The Act provides a complete answer. The Act does not distinguish between notification given to a person in the position of the appellant and any other visa applicant. Nor does it distinguish between applicants with differing levels of education or literacy.

He does note that that was obiter because there was also a finding in that court that physical delivery was required and that had not happened but nonetheless it is a considered position of four judges of the court. I might add – I will come to this later – but Justice Kirby seemed at the core to be of the same view, or at least a similar view – I think the same. Then at 245 at the beginning of the paragraph his Honour says:

As with the giving of notification in WACB, the invitation to make representations requirement applies indifferently across a range of persons whose visa has been cancelled, admitting of an infinite variety of literacy and comprehension capacities. So, it is difficult, in light of WACB, to see why, at least in the absence of knowledge, an invitation need be given other than in English and by a means permitted by the Act.

Now, in relation to WACB, the majority judges did not refer to WACB. We certainly were not in it below, and I do not think – Ms Mitchelmore was not in it below. I am not absolutely certain whether or not it was referred to the court – we have not seen any indication. But Justice Logan was plainly aware of it, and it is critical to his decision. But, with respect, it is not dealt with by the other two members of the court.

WACB is something that I should go to. It is WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; (2004) 79 ALJR 94. That was a case which turned upon whether or not someone had been notified, for the purposes of section 478(1)(b) of the Act, such notification being such that it would have set the time running to lodge within 28 days an application for review to the Federal Court. It concerned in that context the requirement in section 430D(2) to give the review applicant under section 430D(2) a copy of its written statement under section 430. The majority of the Court, at paragraph [37], said of the word “give”:

At the relevant time, the word “give” used in s 430D(2), the applicable provision in this case, was not defined.

That is still the case:

Accordingly, it is the ordinary meaning of the word, understood in its context, that must be considered. The context is that the RRT must give the applicant a copy of the written statement. In that setting, to give a document ordinarily requires its physical delivery, not some act of constructive delivery of possession . . . What is required is that the written statement be physically given to the applicant. Only once this has occurred can it be said that s 478(1)(b) is enlivened and time begins to run.

I have already mentioned to your Honours when we were going through Justice Logan’s judgment, paragraph [43], and that your Honours will see set out there and it includes, of course, that part that I read before at the end of paragraph [43] that Justice Logan had emboldened, but that was in the context of a specific submission by the appellant that:

he had little or no education and was illiterate –

and he was suggesting that it was also required that the statement:

be translated into a language understandable –

to him orally or in writing.

GAGELER J: Mr Johnson, there the document that had to be handed over was identified and its contents really spelt out in section 430.

MR JOHNSON: That is right.

GAGELER J: Is there any provision of the Act or the Acts Interpretation Act that bears on the form and content of the written notice referred to in (i) or the form and content of the particulars with it?

MR JOHNSON: “Particulars”, as I indicated, is defined in the Act itself. But the monosyllabic answer to your Honour is “no”. So, I think we are looking at the ordinary meaning of this and the – when a decision is made under section 501CA it is not accompanied by a statement of reasons so a notice to the person – a statement to the person that his or her visa has been cancelled in accordance with that provision would, we say, be such notice.

Because the Court will be invited to distinguish this case, I think that there are some further things that need to be said about it. I will deal later on with one of the contended linguistic differences. I just noticed some factual things from the judgment and the first is that this was, in fact, a case which was dealing with somebody who was professing significant vulnerabilities in terms of his capacity to understand. I will just skim through the relevant paragraphs in that respect. If your Honours go to paragraph [4] of WACB, starting about six or seven lines down. It was noted that he was:

an unaccompanied minor who allegedly could neither read nor write in either English or his native language, and had received no education in Afghanistan other than lessons in the Koran at his local mosque.

It is also noted down in paragraph [6] in the first 3 lines that:

At all material times . . . the appellant was in immigration detention at the Curtin immigration reception –

The applicant in the present case is still serving criminal sentence.

Then, if your Honours go to paragraph [11] it is there recorded that:

In oral argument, the appellant . . . submitted that the written statement must be translated and communicated to him orally (given he was illiterate) in order to qualify as notification of the decision under s 478.

Then, having already taken your Honours to the statements of principle, I will just to go Justice Kirby for a moment. His Honour, at paragraph [80], speaks of those features of the particular applicant. He says:

The problems facing a person in the position of the appellant are obvious. He was a minor, accepted to be under 16 years of age. He was in detention in a foreign country without parents, family or friends. He was confined in a remote part of Australia . . . at Curtin.

At [81]:

Whether the appellant was of Afghan origin or not, it appears clear that his command of the English language was minimal. From the record it is clear that his education and experience were severely confined. He was substantially illiterate.

I said before that Justice Kirby seemed to be of substantially the same view as the majority as to what they were saying at [37] and [43]. If I go to paragraph [89], halfway through Justice Kirby says:

If I could properly find in his favour, I would. If I could join with the other members of the Court in their analysis and conclusions, I would gladly do so. However, I cannot.

Then he says, five lines down:

That Act applies to a wide range of applicants. So long as it is valid in this respect (a matter not contested), the Migration Act must be given effect according to the terms enacted by the parliament. It is no part of this Court’s function to adopt a strained interpretation in order to cure or avoid the apparent injustice of the particular case.

I also refer ‑ perhaps it is a little bit too long to read aloud – to what his Honour said at paragraphs [98] and [100] of the judgment, which contain remarks in significantly the same vein. The appellant contends that the same approach should be taken in this case as was taken in WACB and that WACB is not relevantly distinguishable.

I will make some short points in that respect in a moment. We do say in this context that if capacity matters were required to be considered, or if actual understanding was required, then one would have expected to find different words in the provision. In relation to the distinction of WACB, the respondent has submitted that it is distinguishable. Let me just make quickly some points in that respect. While section 430D, which was considered in WACB, did not include the words in the way that the Minister considers appropriate in the circumstances, those words are, we say, only permissive. They do not require more to be given than what one finds in (i) and (ii) and they are directed to method, not content.

Another point to be made is that although there was no exact equivalent of section 430D, the significance of 430D was to set the time running for the purposes of 478, and therefore limit the time within which judicial review could be sought. In this case, the next step was not judicial review, the next step was if the applicant was so inclined, making representations to the Minister to revoke the decision. But in both cases section 501CA(3) here and 430D taken with 478 and with WACB, we are talking about a trigger for review rights. So, it is a similar level of importance, and both have significant consequences. Also, the burden and uncertainty that would be involved ‑ with respect, adopting the majority approach in the court below ‑ is also something which is applicable in the context of WACB.

Moving on then from that focus of WACB, neither the context of 501CA(3) nor any purpose produces a different result. As far as context is concerned, there are other provisions in the Act that require documents to be given – that word “give” is used with some frequency – and in our submissions in‑chief in footnote 9 we have given some examples in that respect and, I might add, that some of the examples using the word “give” also say – for instance, in the way that the Tribunal considers appropriate in the circumstances, and within those references in footnote 9, section 359A(1)(a) and 424A(1)(a) and 501C(3)(a) would meet that description, and these provisions are talking about physical giving, physical delivery. There are methods as to how one does that, but nothing that imports the need to take into account capacity matters or the need for actual understanding that it was apparently found necessary in the court below.

EDELMAN J: Does the giving, on your submission, require a personal giving?

MR JOHNSON: No. It is a giving by whatever means and ‑ ‑ ‑

EDELMAN J: Yes, but to the person personally?

MR JOHNSON: Yes, but not necessarily directly. In relation to somebody who is in gaol serving a criminal sentence, very often – of course, the Minister is not going to have access to that person, so to practically achieve the object one has to go through the prison authorities and effectively rely on them as an agent to execute the task.

Justice Logan, if I might mention incidentally, touched upon this towards the end of his judgment at paragraph 258. This is not a part of his Honour’s rationale, of course – or it is not a part of his ratio anyway – but in paragraph 258 about halfway through he mentions the possibility that people might be in a walled prison, near a metropolitan area or a work camp in a rural area and:

Federal offenders aside, it is a necessary implication from their context and purpose that the notification and invitation obligations in s 501CA(3) will mesh in with the administration of the State or Territory prison or other detention facility in which the person whose visa has been cancelled is imprisoned at the time.

So that is the idea. Another point of distinction which has been ‑ ‑ ‑

EDELMAN J: Does section 28A of the Acts Interpretation Act have anything to say about this?

MR JOHNSON: I am not sure that I have got 28A in my bundle, so I might just ask Mr Kaplan to get that up, and then I will ‑ ‑ ‑

EDELMAN J: Yes, certainly.

MR JOHNSON: Your Honour, what I might do, there is a short point I can make within.....then I will come back to your Honour’s question about that provision. One of our friend’s submissions is that section 501(5) provides a point of distinction with WACB, and also aids the construction for which they contend. If your Honours go to 501(5), 501(5) pertains to decision‑making under section 501(3A). The cancellation decision here was under 501(3A). And subsection (5) provides:

The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).

But, of course, once that decision is made, well then subsection (5) no longer has any work to do. And insofar as it is contended that the notice and the invitation are important from the point of view of enabling the applicant to apply for revocation, we say they may very well have significance in that respect. But still, one has to interpret section 501CA according to its terms, and in the light of the considerations to which we have pointed. Your Honour, it may assist ‑ ‑ ‑

KIEFEL CJ: We probably need you back at the microphone, Mr Johnson.

MR JOHNSON: We would just like the opportunity just to see if there are any cases which have looked at that in the context of this particular legislation.

EDELMAN J: There is a very considerable wealth of authority on that and the cognate State provisions but I am not aware of any in the context of this Act.

MR JOHNSON: Yes, yes, and I am a little bit nervous about just embracing – although it does seem to be helpful. We just do not know what has been said in the context of this Act specifically about it. Needless to say, if your Honours wish some supplementary note from us in relation to that we would be happy to provide it.

In relation to extrinsic material, this is not a case where there is some killer passage in the extrinsic material which moves one way or the other but, nonetheless, if one was to find introduced into the Act the sort of need to consider capacity matters and to achieve actual understanding that was found by the majority below, well, then one probably would expect not just clearer language in the statute but also some indication in the extrinsic material.

We might also note just in relation to comparison with other language in the Act that if one goes to section 57 of the Act for a moment, and this is a provision relating to the Minister in the context of certain decisions including grant of visas, getting relevant information, that one sees in section 57(2)(b) a requirement for the Minister to:

ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application –

That may only mean just an indication in English of how it may be one of the – why it would be a reason for affirming the decision or – yes, why it would be a reason for affirming the decision in the M174 sense but, nonetheless, it is interesting that elsewhere in the Act where the legislature has wished to require some measure of ensuring understanding, well, then it sets – and that has not happened here in the context of 501CA.

STEWARD J: There is similar language in section 120.

MR JOHNSON: Yes, there are a few. We also rely on what was said by the Court in Taylor, a passage well familiar to your Honours – Taylor v Owners – Strata Plan No 11564. Their Honours were talking particularly at paragraph 138 about reading in and the Court observed there that ‑ it was Chief Justice French and Justices Crennan and Bell ‑ where the word should be implied is answered against a construction that fills gaps disclosed in the legislation or makes an insertion which is too big or too much at variance with the language and fact used by the legislature and we say that this case is in that territory.

Of course, the same considerations apply in relation to paragraph (b) as apply in relation to paragraph (a), they both apply indifferently to persons with different literacy and comprehension capacities, and WACB at [43], indeed [37] and [43], is a complete answer.

Another proposition which has been advanced for distinguishing WACB is in effect a comparison with sections 360 and 425 of the Act, that is, the requirements that the AAT ‑ the Migration Review Tribunal and Refugee Review Tribunal ‑ invite a person to a hearing and there are a number of differences as a result of which we say that that is not of assistance, or those provisions, are not of assistance to the respondent.

And in relation to that our written submissions have made a number of points. Firstly, both 360 and 425 envisage a hearing and the invitation is to appear before the Tribunal to give evidence and to present arguments relating to the review. Now, that phrase:

to give evidence and present arguments relating to the . . . review ‑

has, of course, been the subject of consideration by this Court, most notably in SZBEL. One does not find that requirement, which one finds in 360 and 425, here in 501CA. So that identification of issues, the element, in sections 360 and 425 is not present. Also, there is no requirement to review comparable with section 348 or section 414, and there is no equivalent to sections 366C or 427(7) which can provide for interpretation and so the comparison we say is simply not realistic. It does not – there is no comparison.

In relation to the proposition we have put in point 10 of the outline that the majority’s construction would cause uncertainty, unworkability or a significant burden that Parliament is unlikely to have intended, that is addressed in our submissions in the paragraphs that we have there identified, but probably the three most important points in that respect are that the approach of Justice Greenwood, including at 138 where he illustrates what might have been involved in the Minister avoiding the difficulty in this case is itself indicative of the sort of difficulties that would be confronted.

In order for the Minister to ready himself to meet this obligation, if in fact the obligation exists, the Minister would need to engage on some process to somehow establish the person’s comprehension of English, his mental and physical health, his capacity – his ability to understand things, the availability of resources to him where he is incarcerated, and then the Minister would need to put in place strategies to deal with that and even at the end of the day there would still be uncertainty as to whether or not the obligation had ever been met, whether the time had ever started running.

These sorts of uncertainties can also flow through to what happens to the applicant thereafter in the context of removal, for example. We did mention – I will not dwell upon this – in paragraph 45 of our submissions section 198(2B) of the Act which was introduced specifically in the context of 501CA cases by later amendment in 2017. But in relation to that provision which we mentioned in paragraph 45 – I will not take the Court to the passage unless the Court wishes me to – I note that in this Court’s judgment in Falzon at paragraph 79 it was noted that that subsection:

applies in relation to a decision under s 501(3A) of the Act made before or after its commencement –

I meant to say 501(3A) before, not just CA. Now, I think, if your Honours will just bear with me a moment, that probably finishes what I want to say about construction. There could well be more, your Honours, but Mr Kaplan has found a Full Court decision, SZMTR [2009] FCAFC 186; (2009) 180 FCR 586 at paragraphs 28 and 29. It was concerned with notification for the purposes of section 66(1) of the Act, which is not the provisions that we are concerned with here. In that case, they found that, this is at 29:

the way in which notification can be made for the purposes of s 66(1) is prescribed by a different statutory scheme in ss 494A‑494D of the Act -

whereas here there is a regulation, regulation 2.55 is the one that makes provision. There might be more, your Honour, than that, but I cannot ‑ - -

KIEFEL CJ: Would you like to put a note in, Mr Johnson?

MR JOHNSON: I think it would be useful, your Honour, yes. Thank you.

KIEFEL CJ: Perhaps within seven days and then seven days for a response.

MR JOHNSON: We would be very grateful, your Honour. Now, your Honours, I note that I have been going for an hour. What I will do is briefly deal with onus of proof and the issues relating to section 497. In relation to the notice of contention, I might ask your Honours if I can deal with that in reply?

KIEFEL CJ: Yes.

MR JOHNSON: In relation to onus of proof, firstly it should be noted that if the appellant is successful on the construction issues then we do not reach this. We only reach onus of proof in the event that the appellant is not successful on both of the construction issues. The short point is that the present respondent had the need to show, even on the respondent’s construction, that the appellant knew about these capacity issues and did not consider them and in relation to the invitation requirement, there would also be a question as to whether or not that is in any different position .

In relation to onus, we said a number of things but probably most shortly in paragraphs 10 and 11 of our reply one complaint made is that the court below in effect found constructive notice by the Minister of communications with the Queensland Correctional Service officers which were post‑decision matters.

Indeed, that gives rise to a number of problems, not just the fact of timing. Also the proposition that that was a mandatory relevant consideration is problematic and if it is not a mandatory relevant consideration, well then query whether one can say that constructive knowledge could be imputed upon an application of Peko‑Wallsend because what the Minister was found to have constructive knowledge of there was something which was found to be impliedly mandatorily relevant consideration.

Also, in that context, the departmental officers were not proved to have any awareness or control over the particular processes of the State prison authorities and QCS officers and those QCS officers were not shown to have had any duty to give information to the Minister as to capacity matters. In that respect, we say that the judgment of Sargent, to which my friend has referred, does not assist the respondent.

There was also.....by Justice Greenwood as to what the protection visa file might have revealed but the protection visa file was not in evidence and there was no basis, we would say, with respect, for the speculation. The fact that somebody is a refugee or even the fact that somebody has particular identifiers does not necessarily show any lack of capacity. One cannot generalise about all people of a particular nationality, et cetera, or, indeed, all refugees.

Generally, the consideration of onus of proof by the majority, rather than being confined to evidence which was before the Minister was really looking at things on the evidence before the court and both before and after. So that is what we say about onus of proof.

In relation to the question of delegation and section 497 of the Act, it is common ground that the person who sent the package of material to the prison - that package of material can be found from page 8 of the core appeal book up until page 94 - but the person who gave the notice of visa cancellation and who gave the invitation found in there was the cancellation delegate.

There is no evidence of this before your Honours, but the matter below did proceed upon the basis that although that person was delegated to exercise the power of the Minister under section 501(3A) that person did not have a separate delegation under section 501CA and the dispute then became whether that was necessary, that is, whether it was necessary for the person taking the step to have a delegation – or steps - have a delegation under section 496.

It is in that context that we need to go to section 497 and section 497 is headed “Delegate not required to perform certain administrative tasks” and subsection (1) is about grant or refusal of visas. We have skipped down to (2), subsection (2):

If the Minister delegates the power to cancel visas, the delegation does not require the delegate personally to perform any task in connection with the cancellation, except the taking of a decision in each case whether a visa should be cancelled.

Then, subsection (3) says:

Nothing in subsection (1) or (2) shall be taken to imply that:

(a) a person on whom a power is conferred by or under this or any other Act; or

(b) a delegate of such a person;

is required personally to perform all administrative and clerical tasks connected with the exercise of the power.

Now, in relation to that, I should take your Honours just to the few core paragraphs of the reasoning. Justice Logan who was in dissent at paragraph 255 said:

As to the giving of an invitation under s 501CA(3)(b), that is important and a matter of obligation I have already accepted, but these features do not convert what is found in that subsection into a statutory power. The giving of the invitation is correctly characterised as a task arising under s 501CA(3)(b). Further, like the giving of the notice of cancellation, the giving of the invitation to make representations is, in terms of s 497(2) of the Act, a task in connection with the cancellation. That is the natural meaning to give to the language of s 497(2) of the Act.

The other two judges were of a different view. If I could go Justice Rares at 179 - I am working backwards, only because these are a little bit shorter, but at 179 Justice Rares says:

However, the particular requirements of‑ ‑ ‑

Sorry, he has referred to 497(2) in the preceding paragraph. He says:

However, the particular requirements of s 501CA(2) and (3) involve the Minister giving consideration to what needs to be done to satisfy and fulfil the duty under s 501CA(3). That duty extended beyond mere “tasks” that the Minister or his officers must perform simply in accordance with regulations.

So it is a distinction between “mere tasks” and other tasks. We say the test was the task in connection with the visa cancellation.

STEWARD J: Mr Johnson, can I ask a question?

MR JOHNSON: Yes, of course.

STEWARD J: Is it common ground between you that the act of giving notification and inviting was something that took place in connection with the cancellation of the visa for the purposes of 497(2).

MR JOHNSON: Justice Greenwood certainly accepted that it was in connection with ‑ I will double‑check that. I will give your Honour the pinpoint paragraph. That was at paragraph 152. I am reluctant to say whether or not my friend disputes that or not.

STEWARD J: If 497 was not engaged, would this be a case from your perspective of the Carltona principle applying?

MR JOHNSON: We do rely on Carltona, your Honour, but in relation to this we think 497 is the easier road.

STEWARD J: Thank you.

MR JOHNSON: Let me give your Honours the paragraph numbers in Justice Greenwood’s judgment – 150 to 151 and 162 to 163. I will take your Honours to those. At 150, his Honour said:

However, once it is accepted, as it must be, that the doing of the acts or things (or refusing to do those acts or things) required of the Minister by s 501CA(3)(a) (which involves giving the person the prescribed matters in the “way” the Minister considers appropriate in the circumstances”), engages the exercise of a substantive power or substantive obligation, properly characterised as a “decision” for the purposes of the Act, being a decision that has an affect upon the rights of the former visa holder for all the reasons earlier mentioned, it readily becomes apparent that the acts or things required of the Minister by s 501CA(3)(a) are not merely “tasks” in connection with the cancellation.

Similarly, the invitation required to be made to the person, by the Minister, by s 501CA(3)(b) is not merely a task to be performed in connection with cancellation. It is a mandatory obligation of substance cast upon the Minister critical to the person’s opportunity to seek to satisfy the Minister that there is a reason why the cancellation decision should be revoked and his or her deportation avoided.

Then at 162 to 163, his Honour Justice Greenwood says:

However, as a question of statutory construction, the obligations cast upon the Minister by s 501CA(3) are substantive obligations critical to the relationship between decisions made under s 501(3A) and the opportunity to be provided to the former visa holder to seek to satisfy the Minister that there is a reason why the cancellation decision ought to be revoked, for all the reasons previously identified. The particular content and burden of the obligations to be discharged by the Minister under s 501CA(3) in relation to a former holder (including the requirement under s 501CA(3)(a) to give the person “in the way the Minister considers appropriate in the circumstances”) are not properly characterised as simply part of the multifarious functions forming the business of government. Nor are the obligations properly characterised as “tasks” (relevantly connected to cancellation) such that they need not be performed by the Minister or a person holding a delegation to perform the statutory obligations under s 501CA(3).

So Justice Greenwood was not accepting that they are in connection with the cancellation.

EDELMAN J: Is your submission essentially that the power to cancel visas and tasks in connection with the cancellation exhausts the universe of everything that needs to be done in relation to cancelling a visa?

MR JOHNSON: Well, it does not exhaust everything that needs to be done because it marks the limit of everything that needs to be done by the Minister or the delegate, particularly here the delegate. There are duties imposed, no doubt about that, in section 501CA(3) – there are duties and functions ‑ but the fact that they are such does not mean section 497 does not apply.

And what we say is that the word “tasks” is just used in its ordinary sense and that there is no warrant for distinguishing between mere tasks and those that affect substantive rights and obligations. The true test here is whether or not the asks are in connection with the cancellation. We say these 501CA(3) steps are tasks, they are in connection with the cancellation, and ‑ ‑ ‑

KEANE J: But the point is they are no less tasks because they are obliged to occur.

MR JOHNSON: That is right, exactly. A task can be a piece of work, an activity, that one is duty‑bound to do, or which the Minister is duty‑bound to do, which he can then rely upon his staff to do, we say, without that person having a specific delegation under another provision. In relation to that, we say that it is highly unlikely that it was intended by the Parliament that, in the presence of section 497, the steps in section 501CA(3) would need to be performed by some other delegate.

We have referred your Honours in that respect to a single judge decision of the Federal Court, which I will take your Honours to, because there are a couple of paragraphs of it which are directly pertinent. And though it be a single judge decision, this is the court dealing with the provision on a final basis. It is McCulloch v Minister for Home Affairs [2019] FCA 24. Your Honours’ pagination is the same as mine, I think it starts at 2900.

EDELMAN J: Which tab is that, Mr Johnson?

MR JOHNSON: Yes, I can give your Honours the tab. Just bear with me a moment.

KIEFEL CJ: I think it is 43, Mr Johnson.

MR JOHNSON: I am sorry?

KIEFEL CJ: I think it is 43.

MR JOHNSON: Thank you, I am indebted to your Honour. If I could ask your Honours to go paragraph 42 of her Honour Justice Markovic’s decision, and paragraph 42 then has a number of subparagraphs. I particularly want to go to subparagraph (2), so paragraph 42, subparagraph (2), and then if we start about six lines from the end of the paragraph, her Honour says:

There is no reference in s 497(2) to administrative or clerical tasks, the only parameter set by s 497(2) is that the delegate is not required personally to perform “any task in connection with the cancellation” except that of the taking of a decision as to whether a visa should be cancelled. The only relevant question to ask in determining whether, in connection with the cancellation of a visa, a task can be undertaken by a person other than the delegate is whether the task was connected with the cancellation –

Then if your Honours go to paragraphs 43 and 44. At paragraph 43 her Honour refers to a judgment of the Federal Circuit Court which her Honour was departing from, and her Honour says:

I therefore respectfully take a different view to that taken by Judge Manousaridis in relation to whether the tasks to be undertaken pursuant to s 501CA(3) of the Act are “in connection with the cancellation” of a visa and thus required to be undertaken by a delegate of the Minister. In my opinion, they are tasks that are in connection with the cancellation of a visa and thus, pursuant to s 497(2), are not required to be undertaken by the delegate.

Mr McCulloch submitted that s 497(2) of the Act was silent on who, other than the delegate with the power to cancel visas, could undertake “any task in connection with the cancellation” of a visa and said it would have to be another person with the requisite delegation. I reject that submission. To read s 497(2) in that way would render the section otiose.

It would be surprising, in our submission, if, having enacted that provision in those terms, there was nonetheless a residual need – a residual demand for the person taking the consequent notification and invitation steps to have some separate delegation, albeit under another provision. I am indebted to Mr Kaplan.

Just returning to your Honour Justice Gageler’s question about whether there is a requirement for things to be in English, there is a judgment – it is in fact footnoted in our submissions somewhere – but it is Nguyen v Refugee Review Tribunal (1997) 74 FCR 311, and Justice Goldberg said something briefly at the bottom of 325 and over the top.

STEWARD J: Do you mean Justice Sundberg, rather than Goldberg?

MR JOHNSON: I am sorry, yes, I do apologise for that. I did mean Justice Sundberg, not Justice Goldberg. Justice Sundberg said:

The official language of Australia is English. The Constitution, statutes, regulations and bylaws are written in English. Proceedings in Parliament and the Courts are conducted in English. Governments correspond with their citizens in English. In that context a requirement that an appellant be notified in writing of a government decision affecting him is, in the absence of something showing a contrary intention, to be understood as requiring a notification in English.

Your Honours, those are our submissions, unless there is anything from your Honours.

KIEFEL CJ: Thank you. The Court might take its morning break before we hear from you, Ms Mitchelmore.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

KIEFEL CJ: Yes, Ms Mitchelmore.

MS MITCHELMORE: Yes, thank you, your Honour. Your Honours, dealing first with the construction point, what I would seek to do first in accordance with the oral outline we have provided is to identify some of the features that are relevant to the construction of section 501CA and which, in our submission, have some relevance to construing its terms.

Your Honours will see that they are set out in paragraph 2 of our oral outline. The first feature is the circumstances of the application of section 501CA and its application according to subsection (1) is limited to decisions of the Minister made under section 501(3A). That provision, of course, indicates that the class of persons to whom the provision applies is limited. Section 501(3A) provides that:

The Minister must cancel a visa –

if the conditions in paragraphs (a) and (b) of that subsection are met. Relevantly, for present purposes, although both of conditions (a) and (b) focus upon the particular circumstances of the visa holder, paragraph (b) provides that:

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.

So, that criterion, in our submission, serves to limit the class of persons to whom this particular power applies. It is a defining characteristic that they must be in full‑time imprisonment in an institution.

The next feature on which we rely is the context in which section 501CA arises for application and your Honours will see in section 501(5) there is a prescription that the rules of natural justice and a particular code of procedure do not apply to a decision under section 501(3A).

KIEFEL CJ: What do you draw from that, Ms Mitchelmore?

MS MITCHELMORE: Your Honour, we submit that it is relevant when one comes to consider the scope of the obligations for which section 501CA make provision because the section applies – 501CA applies following a decision of which the person whose visa has been cancelled has had no notice and no opportunity to comment. So, it is a situation where the first notice that they receive of the decision is the notice under section 501CA(3).

The third feature on which we rely is the function that section 501CA performs, and in some respects I have already said this in answer to your Honour the Chief Justice’s question. But viewed together, namely section 501(3A) and 501CA, they constitute an “integrated statutory scheme”, as Justice Greenwood described it in paragraph 87 of his Honour’s reasons.

It is common ground, as I understand it, between the parties that section 501CA provides or performs an ameliorative function, being ameliorative to the mandatory cancellation under section 501(3A). .....provides an opportunity for persons to make representations for the first time on a matter that is of critical significance to the person concerned, being the loss of their visa, and their immigration status change from a lawful non‑citizen to an unlawful non‑citizen.

Specifically, section 501CA is the mechanism by which a person in the position of the respondent in this case is first given notice of the visa cancellation decision and particulars of relevant information, as that term is defined; secondly, given the opportunity to make representations to the Minister about revocation of the cancellation decision and the focus of the substance of which is indicated by subsection (4) of section 501CA, and subject to the requirements of subsection (4), potentially has an opportunity for the Minister to exercise his discretion to revoke the cancellation that was mandatorily made pursuant to subsection (3A) of section 501.

The fourth feature to which we have referred in our oral outline is the conditional nature of the entitlement that is conferred by the section and by that we mean that when one looks at section 501CA(4)(a) the Minister’s discretion to revoke is only enlivened if the non‑citizen has made representations in accordance with the invitation, being the invitation that is referred to in subsection (3)(b).

By that provision, the representations, the subject of the invitation, are to be about revocation of the decision within the period and in the manner ascertained in accordance with the regulations. If no representations are made, or if the representations are made in a manner or not within the period that is ascertained in accordance with the invitation, the Minister cannot revisit the original decision under section 501CA, and the person is liable to removal or indefinite detention, or detention pending removal. There are no statutory exceptions to representations being made otherwise than in accordance with the invitation.

We submit that it is important, when one comes to the text, to look at it against the background of those features to which I have referred, considered collectively, one, in our submission, has to look at the circumstances in which section 501CA comes to be applied, the limited class of persons to whom it applies, the function that the section performs and the confined nature of the entitlement that it confers on a non‑citizen to make representations.

If I come then to the text of the section, 501CA(3), your Honours will see that there are two requirements, both of which need to be complied with in paragraphs (a) and (b). They both need to be complied with as soon as practicable after making the original decision. The matters in paragraph (a), being the written notice of the decision and the particulars of the relevant information necessarily inform, in our submission, the requirement in paragraph (b) “to invite the person to make representations”.

They are also informed, in our submission, by that requirement in the sense that the giving of the notice and the particulars is done in the knowledge that an invitation to make representations has also been given and it is an invitation to make representations about the revocation.

In our submission both paragraphs are also informed by the content of section 501CA(4), which constrains the opportunity to make representations consistently with the period and manner to which section 501CA(3)(b) refers, and it sets out the matters of which the Minister must be satisfied in order to revoke the original decision to which the particulars of relevant information, to which section 501CA(3)(a) refers, will likely be of significance.

It is not possible, in our submission, to compartmentalise strictly the two paragraphs of subsection (3) although both must be complied with. They are complementary requirements and, in our submission, should be construed in that manner and, in our submission, that is what the Full Court was seeking to do in the decisions of Justice Greenwood and Justice Rares.

When one looks at paragraph (a), we submit that the requirement to give a written notice and particulars of the relevant information in the way that the Minister considers appropriate in the circumstances is directed at more than the manner of physical delivery. In our submission, if one brings to account the opportunity that the giving facilitates and to which section (3)(b) refers, the requirement to consider the way to give that the Minister considers appropriate in the circumstances is directed to the particular recipient, and in what way is the material in (i) and (ii) appropriately to be given to them so as to complement the invitation in paragraph (b).

What the invitation requirement in paragraph (b) entails, having regard to the nature of the subject matter, and the purpose of the provision, is the conferral of an opportunity that we say must be an opportunity of substance to make representations about the revocation and not an invitation that simply satisfies matters of form.

We have referred in our written submission at paragraphs 27 to 29 as to how other invitation requirements in the Act have come to be construed, albeit in the context of tribunals and in the context of hearings, but we say that the purpose that underlies those provisions similarly underlies the purpose of the invitation to which section 501CA(3)(b) refers and to which it gives effect.

In our submission, when one returns to paragraph (a) we submit that in settling on a way that is appropriate in the circumstances to give a written notice and particulars of relevant information the Minister has to consider matters that may affect the particular recipient’s capacity to receive, understand and make representations in accordance or in response to the notice.

KIEFEL CJ: Your argument takes the matter rather beyond the method of notification and seems to come closer to an obligation to ensure a level of understanding.

MS MITCHELMORE: Yes, I have to accept, your Honour, that it is not concerned wholly with method, although it depends on how one defines what “method” is. But in our submission, one is looking at the way to give it that is appropriate in the circumstances and I have to accept it is beyond physical delivery; one is also looking at giving it in a way that the particular recipient will be able to understand it and then be able to respond to, in a meaningful way, the invitation that is the subject of paragraph (b) of section 501CA(3).

KIEFEL CJ: Are we in the realms of implications?

MS MITCHELMORE: In terms of the text of the provision, yes, I think we would be.

KIEFEL CJ: What were the words that you would imply?

MS MITCHELMORE: It may be, your Honour, that there is a difference between the parties as to what work appropriate in the circumstances needs to be given.

KIEFEL CJ: Yes.

MS MITCHELMORE: In our submission, we are placing a lot more weight on what is appropriate in the circumstances and that that would bring in the particular circumstances of the individual who has been provided or given the written notice. That is how I would put it. It certainly makes those words of the provision do a lot more work than, in our submission, the construction for which the Minister contends, which is concerned only with method.

KIEFEL CJ: Yes, I see.

EDELMAN J: Why is not the purpose of those words to express a contrary intention to section 28A of the Acts Interpretation Act?

MS MITCHELMORE: Your Honour, that may well be obviously an available construction of those provisions or of that provision and having regard to section 28A, but we say when one looks at the particular context and purpose of the provision and the work that it is doing, it actually has the other purpose for which ‑ ‑ ‑

EDELMAN J: It goes further.

MS MITCHELMORE: Yes, it goes further. Your Honours, if paragraph (a) were to be construed as requiring consideration of that nature, that would facilitate the recipient of the notice having the opportunity that we submit paragraph (b) requires and, in our submission, would serve the statutory purpose.

The effect of the Full Court’s decision is that we are an individual in the class of persons to which section 501CA applies - has issues which affect their capacity to understand that their visa has been cancelled, what information would be the reason or part of the reason for making that decision and what they can do to seek revocation - that consideration is given as to how that is conveyed to them, the way that is conveyed to them and the way that it is to be conveyed is necessarily circumscribed of course by the custodial context in which the recipients of this notice are likely to be in most if not all cases.

In our submission, your Honours, WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; (2004) 210 ALR 190 does not call for a contrary conclusion to the construction for which I am.....adopted. We have addressed that case in our written submissions at paragraph 31 and, in particular, the emphasis we gave was that the provisions of which section 430D forms part constituted a code, an integral element of which was that a copy of the written statement containing the Tribunal’s reasons be given to the applicant, either at the time that the decision was handed down or within 14 days.

My friend took your Honours to paragraph [15] of the decision of the High Court in that case where their Honours said that having regard to the legislative history, what was required to constitute notification of the decision under section 478 of the Act was “fulfilment of the code”. The written statement of reasons which had a specified content by reference to section 430 of the Act was the medium of notification.

GAGELER J: Ms Mitchelmore, do your submissions go so far as to say that the opening words of paragraph (a) govern the form and content.....they simply add?

MS MITCHELMORE: They simply add, your Honour, yes, they do not, I think, in my submission, govern the form necessarily of the notice or the particulars but that has to be given in a way that the Minister considers appropriate in the circumstances which, in turn, deals with how is the person to receive the notice and have a capacity to understand the content of the notice and the particulars so as to have a meaningful opportunity to engage with that in making submissions about the revocation under subsection (4).

GAGELER J: So, let us assume that there is a letter from the Minister saying I have made this decision. It is written in English. You accept, as I understand your submission, that that is a written notice within the meaning of (i) and your submission is that that must be conveyed in a manner that imparts the contents in a way that the recipient will understand, is that – that is what is required by the opening words. Similarly with particulars?

MS MITCHELMORE: That is right, yes, your Honour, that is right, yes. Perhaps similarly also with the invitation that is given under paragraph (b) so the words that we are emphasising is “giving” in a way the Minister considers appropriate rather than taking issue with the particular form in which the written notice might be prepared, or the particulars might be.....

Your Honours, I was dealing with WACB. One of the matters that the Court considered of some significance, I think my friend went to it this morning, was the entitlement that was conferred by section 478 of the Act which was limited in scope and that it was in the nature of a condition, section 478, which was of the essence of a new light and it was remedial in nature.

Against that background the word “given” in that context was construed to mean the physical delivery of the particular notice in question, rather than what had occurred in that case where the person had not actually been provided with the copy of the written reasons to which section 430D referred.

In our submissions at paragraph 31, we have said that by contrast with section 430D(2), the text of section 501CA says more than what was said in section 430D(2) and, in our submission, those words need to be brought to account in the exercise of construction with which the Court is dealing.

Those additional words also permit, in our submission, of a difference between what the Court was considering in WACB and what their Honours have said at paragraph [43] of the reasons and what it is considering here in terms of the question of capacity and comprehension ‑ ‑ ‑

STEWARD J: Ms Mitchelmore, if Parliament had intended 501CA(3) to operate the way you have submitted, why would it not have included the language that we saw in 57(2)(b) and also in section 120.....have the reference to “the way that the Minister considers appropriate in the circumstances”, and then it goes on:

ensure, as far as is reasonably practicable, that the applicant understands why it is relevant ‑ ‑ ‑

MS MITCHELMORE: Yes, your Honour, the ‑ ‑ ‑

STEWARD J: If Parliament had wanted to do what you suggest, why would they not have just enacted words like that?

MS MITCHELMORE: Yes, your Honour that is, I take the force of what your Honour puts to me in that regard.

STEWARD J: It is not just once in this Act. It is repeated in section 120.

MS MITCHELMORE: It is, your Honour, and in more than one place. The only answer that I can give to that, your Honours, is to emphasise, obviously, the context in which section 57, section 120, section 424A and the like appear, and that of course is within subdivisions where the prescription is made that the provisions are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which they deal.

So, one is dealing in relation to those particular provisions with the code and if one is going to create a code, in our submission one might want to be more prescriptive as to the opportunity that is being required of the Minister. Section 501CA is not part of any such code and in our submission that is a relevant distinction for the purposes of this Act and this particular provision. One is looking, in our submission at that particular provision and what it does to give rise to or record procedural fairness in particular or the hearing.....

The other thing that I would note about section 57, and again in that context of the Code, if could I take your Honours to, or perhaps just give your Honours a reference. There was in the paragraph – in the judgment of the plurality in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 their Honours were obviously construing section 57 of the Act and in particular 357A and the provisions constituting the Code.

One of the things that their Honours referred is in the context of section 57 was the existence of section 58, and section 58 permits or refers to how an invitation is to be responded to and that can include being responded to by way of an interview. So further opportunities are given beyond a written response in those particular codes – I think it appears in.....and what their Honours said at paragraph 20 at page 261 of the report is that when one looks at section 58:

It is not difficult to envisage that in some cases an interview may be necessary.

So there is some flexibility within the Code to facilitate matters of capacity, by contrast with section 501CA.....we say has to be.....of the section.

Your Honours, that is all I wish to say about the questions of construction. Ground 3 only arises if the Court does not uphold grounds 1 and 2. And, indeed, if it does not uphold ground 1 but does uphold ground 2, it would need to be considered in that context. So, it only arises if the Court accepts the Minister’s contention that subsection (3) did not require the respondent actually to comprehend what the Minister.....but accepts the respondent’s contention that there is a requirement for the Minister to take into account the respondent’s or other person’s capacity matters.

We have sought in our written submissions to marshal the evidence that we submit establishes that there was sufficient material available, either actually or constructively, to put the Minister on notice that the respondent had issues regarding his capacity.....material that he was given, and that the Minister did not consider that material. But I do not wish to say anything further unless your Honours had particular questions for me.

KIEFEL CJ: If, in a case where there is no actual or constructive knowledge about the capacity of the recipient of the notice, or construction would require inquiries to be made, what do you say to the Minister’s submissions in relation to the workability of the Act if the obligation extends that far?

MS MITCHELMORE: Yes. Your Honour, the only thing I would say about that is that we are dealing with a limited class of persons who are within the control of particular organisations. The Department, of course, is cancelling a visa that has been granted to the particular non‑citizen, so there will be material constructively available, in my submission, to the Minister that, in my submission, could give some indication of particular capacity matters, so that is as far as that goes. In our submission, it would be an inquiry of a nature that would be, in our submission, obvious, and the answers would be readily available by contact with the persons who are having the control of the custody of the person at the particular time.

KIEFEL CJ: Would your construction have ramifications for other aspects of the Migration Act?

MS MITCHELMORE: In our submission, no, because of the particular circumstances in which this provision arises and the limited class of persons to whom they.....There are, I think, two other provisions that are similarly worded and where the issue might arise, but again the persons in those circumstances do not have to be serving a custodial sentence in an institution, and that relates to the power to cancel on public interest or national interest grounds and section 501C deals with that.

And also the provision, it is under section.....yes, it is subdivision FA of Division 3 of Part 11 of the Act which confers additional powers for the Minister to cancel visas under section 109 or 116 of the Act. Your Honours will see that section 133F is formulated in identical terms to section 501CA but, again, in our submission, it is not a prerequisite to the making of a cancellation decision pursuant to that provision or the national interest cancellation that the person be in criminal custody.

EDELMAN J: Before you move on from the construction submission, do you accept what the Minister says about the effect of Justice Rares’ judgment that it goes further than your position in that, at least on one reading of it, it appears not even to require actual or constructive notice?

MS MITCHELMORE: That is right, it does, yes.

EDELMAN J: But you do not defend it to that extent or you do?

MS MITCHELMORE: Your Honour, we have put written submissions about that but, in my submission, there are obvious difficulties with requiring the knowledge in fact and how one would establish that. Of course, one of the differences perhaps between the 360 and 425‑type cases and the present case is that one has a hearing at which one can assess the opportunity that has been given. In this circumstance, one is looking very squarely at particular circumstances that might only be known, absent actual or constructive knowledge to the particular person. That is a difficulty, in our submission, that necessarily arises.

Your Honours, if I can move then to ground 4. This is the delegation point and, again, it just raises a question of construction. Just going back to section 501CA. Obviously, it identifies the Minister as the person who is required to give the notice, particulars and invitation that is set out in that provision. The starting point, in our submission, is that where a statutory provision requires a person to do something it must be done personally by that person.

Section 496, of course, contains an exception to the general rule, permitting the Minister to make a written delegation of his powers under the Act. It is common ground, in this case, that the delegate did not hold a delegation in relation to section 501CA which gives rise to the question of section 497 and its application.

In our submission, when one looks at the terms of section 497(2) and subsection (1), its purpose is to clarify matters that do not need to be performed pursuant to particular delegations of power under section 496 and with those referred to in subsections (1) and (2), the powers to grant or refuse a visa or the power to cancel. We place some emphasis on the negative terms in which subsections (1) and (2) are expressed as not conferring a separate power but providing, if those powers are delegated, the particular powers, the delegation does not require the delegate to do certain things.

The clarifying purpose was, in our submission, confirmed by the language used in the predecessor provision to section 497, which was the delegation shall not be taken to require, the question of what is the scope of the delegation that has been given. We would also draw your Honours’ attention to that purpose being confirmed by the explanatory memorandum which addressed the insertion of what is now section 497(2) and that was pursuant to the Migration Legislation Amendment Act 1994 which stated that the purpose of the provision was to put beyond doubt that a delegation to cancel visas does not require the delegate to personally perform any task.

The example was given in that explanatory memorandum, which is extracted in paragraph 68 of my friend’s written submissions, in the second sentence of the italicised material at about line 13 that the amendment was:

to cater for situations such as where another officer interviews an applicant and prepares a submission for consideration by a delegate.

So that was the type of task for which the delegate, or section 497(2) directed. In our submission, section 501CA is in a different category. By that provision, Parliament has identified steps that must be taken following upon and separately from the cancellation of a visa under section 501(3A), which leads to the exercise of power in the same section ‑ 501CA(4) – to revoke a cancellation. In our submission, we submit that section 497(2) is not a provision that would capture that particular exercise.

STEWARD J: So you take the point that (2) is premised upon a delegation of the power to cancel.

MS MITCHELMORE: Yes.

STEWARD J: We are dealing with a delegation of the power to revoke, so 497 just has no relevance at all.

MS MITCHELMORE: That is right.

STEWARD J: I understand.

MS MITCHELMORE: Your Honours, can I come then to the notice of contention which ‑ ‑ ‑

KIEFEL CJ: Ms Mitchelmore, do you need leave in relation to the notice of contention? The matter was not raised below, was it? The point appears in Justice Rares’ judgment, but I do not think it was a ground of appeal.

MS MITCHELMORE: Yes, that is correct, your Honour. Yes, I do ‑ ‑ ‑

KIEFEL CJ: Was it argued before their Honours?

MS MITCHELMORE: .....

KIEFEL CJ: So you do require leave?

MS MITCHELMORE: Yes, I do require leave. Yes, thank you, your Honour.

KIEFEL CJ: On what basis should leave be granted?

MS MITCHELMORE: Your Honour, it is only I suppose insofar as the point raises a question of construction of the provisions of the Act and regulations, in a matter that was of some significance to the court below. And, in our submission, we say for those reasons it should be.....that is all I can say about it.

KIEFEL CJ: We will hear your argument on it and deal with the question of leave when we consider the matter.

MS MITCHELMORE: Certainly, your Honour. We have dealt with it in some detail in our written submissions and the short point is that, in our submission, section 501CA(3)(b) requires the Minister to:

invite the person to make representations . . . within the period and in the manner ascertained in accordance with the regulations –

And it is a precondition, of course, to the exercise of the power in subsection (4) that is set out in paragraph (a):

the person makes representations in accordance with the invitation –

to which (3)(b) refers. In our submission, having regard to the terms of (4)(a), we submit that the period in which the representations may be made and the manner in which representations are to be made as prescribed in the regulations are matters which must be included in the invitation. And, in our submission, that is consistent with the nature of an invitation, and with the requirement for the recipient to make:

representations in accordance with the invitation –

The use of the phrase “within the period” in paragraph (b), in our submission, indicates a closed, finite period with discernible start and end points. In the present case, the appellant was given a period by reference to when he was taken to have received the notice. That language was consistent with regulation 2.55, which makes provision for the manner of giving the notice and particulars and prescribes when it is taken to have been received, and we have given your Honours the relevant extracts.

What your Honours will see, as we have set out in our written submissions at paragraphs 63 and 64, is that the notice and invitation stated erroneously that it was transmitted to the respondent by email. And it is very apparent, in our submission, from page 1 of the core appeal book that the Minister was not giving this document to the respondent by email. Indeed, the document was emailed to Corrective Services to hand to the particular.....

So, in our submission, what arises is that the notice misidentified the method by which the material was to be given to the respondent, it misidentified the period within which the respondent had to make representations, and it contained no point of reference by which the respondent could have determined the correct period. As we have said in our written submissions, those deficiencies were not cured by what the Corrective Services officer told the respondent, which we have set out in paragraph 10.

In our submissions, having regard to the significance of the making of representations within the period, and in the manner that is in accordance with the invitation, in our submission, an invitation that does not enable a 28‑day period within which a recipient is to make representations to be ascertained, is not an invitation for the purposes of section 501CA(3)(b).

STEWARD J: I may be wrong, but do the regulations provide for the Minister to send the email to the email address known to the Minister, the words used in regulation 2.55?

MS MITCHELMORE: Yes.

STEWARD J: I am just assuming that they are the relevant regulations. How do we know that the email address known to the Minister was not the email address of the corrections facility? They could not send it to him via his ‑ ‑ ‑

MS MITCHELMORE: Personal email address, yes.

STEWARD J: Personal email address. He might have one; I do not know, but what worries me is I just do not know what the answer to that is factually.

MS MITCHELMORE: No, your Honour. I do not know what it is factually either.

STEWARD J: So how do we know one way or the other whether he was served by email or not served by email?

MS MITCHELMORE: The only matter that I would draw attention to in that context is really the terms of the email that was sent to Corrective Services which was not addressed to the respondent in particular. It was addressed to Corrective Services. This is at page 6 of the ‑ ‑ ‑

STEWARD J: Again, assuming he had no personal email or no access to one, that may not take you very far because how else would you address it?

MS MITCHELMORE: The question may then be, your Honour, whether or not as a matter of construction the part of the regulation to which your Honour has drawn my attention is referring to a personal email address or alternatively some other email by which the person might be reached. In our submission, we would contend that it needs to be the personal email address that would need to be..... I am actually informed, your Honour, that in the course of the Full Court there had been reliance placed on email being – there were issues with the electronic transactions.

STEWARD J: That again raises issues of fact, though.

MS MITCHELMORE: Yes, that is right, but as I ‑ ‑ ‑

STEWARD J: ‑ ‑ ‑ about which ‑ ‑ ‑

MS MITCHELMORE: I am sorry to interrupt your Honour.

STEWARD J: No, I apologise to you, sorry.

MS MITCHELMORE: I was simply going to say that as I understand it, the Minister did not press reliance on email service by reason of those particular matters that arose.

STEWARD J: All right, thank you.

GAGELER J: There seems to be a concession in paragraph 19 ‑ ‑ ‑

MS MITCHELMORE: Yes. Unless there was anything further, your Honours, those are our submissions.

KIEFEL CJ: Thank you, Ms Mitchelmore. Mr Johnson.

MR JOHNSON: Your Honours, firstly and briefly, in relation to the construction ‑ ‑ ‑

KIEFEL CJ: If you could remove your mask, Mr Johnson, it would be easier for us.

MR JOHNSON: Sorry, I actually forgot. First, just briefly in reply on the construction point, although I may perhaps be a little repetitive, section 501CA(3)(a) is, as we have already submitted, using the word “give” in the sense of deliver or convey, and it is give in the way that the Minister considers appropriate those two things - the written notice that sets out the original decision and then the particulars of the relevant information. As I submitted before those are really quite closely defined concepts.

The section is not requiring the person to also be given something else, such as a translation or an explanation or actual understanding. In relation to the onus of proof question, certainly that goes away if the appellants are entirely successful on the construction point. My friend submitted that there is no need to consider onus of proof if the court finds section 501CA did require her client to actually understand the invitation. In our submission that it not quite right, because there is still an issue as to how the court satisfied itself in that respect from material that post‑dated the decision, or from material which it said judicial notice could be taken but when that material was not itself a relevant consideration.

There is also the difficulty of speculation as to what might be on the protection visa file, which was not in evidence. So we do not agree with the point – we dispute our friend’s submission. There is no need to consider what the court said if the Court finds that section 501CA did in fact require the client to actually understand the invitation.

Also, this might be more a matter of me being a little bit confused, rather than anything truly deserving of correction. But I would just like to remind that Justice Greenwood did, at the bottom of page 206 of the book, that is towards the end of that page, describe:

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”.

So that is really very broad. In relation to the – I am moving on now to what I will call the delegation section 497 point. Reference was made to the appellant’s written submissions at paragraph 68 and in particular to the quotation which occurs there at about point 4 of the page from some extrinsic material. My friend has focused in particular upon that second sentence, which says:

This is to cater for situations such as where another officer interviews an applicant and prepares a submission for consideration by a delegate.

The purpose of the amendments is to:

...

• put beyond doubt that a delegation to cancel visas does not require the delegate to personally perform any task except taking the decision as to whether the visa should be cancelled.

Our point in relation to that is simply that the example does not detract from the generality of the proposition, so it is not a question of timing; it is not a question of whether or not the step is before or after the cancellation decision. The point is more that as long as it is in connection with the cancellation decision, well then it is excluded, and we do say that – again I am saying this for abundant clarity – but we do say that the person who took the steps under 501CA did not, in those circumstances where those steps were in connection with cancellation, need a delegation under another provision, including section 501CA, and we say that based upon the proposition that it is unlikely that the legislature would have intended to take away in this way the need for a delegation, but only to require another delegation under another provision.

If that was the task – if that was the point of the provision, to require that people be delegated under other provisions where powers or functions under those other provisions are exercised, well, then – or duties – then one would have expected that to be said. Justice Markovic made a similar point in the second of the paragraphs that I read before.....

In relation to the email address.....I will come to our paragraph 19 in a moment but just to be clear that your Honours know where the address came from. There are respondent’s further materials that have been filed and in paragraph – sorry, on page 37 of the respondent’s further materials one sees down the bottom of the page about – probably about four or five lines from the bottom an email address for the Brisbane – sorry, for the Queensland Correctional Centre. That is the email address that was used on 3 January 2011 in communicating with the prison officers. That is the email back on appeal book page 8 that was sent to the prison asking the prison to give to the applicant this package, including the notice and the invitation, which starts on page 8.

That particular address was effective for bringing about the applicant being given the documents, at least in the sense that he was given the documents the next day. He was hand given the documents the next day, on the 4th, and that is not in dispute. The criticism by the court below related to the fact that ‑ if your Honours go to page 11 of the appeal book, at line 10 there is a statement:

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

The email address was not one which pertained to the applicant himself or which the applicant had himself given, albeit it was an email address that the Minister thought would be effective in reaching the applicant. The criticism was in effect that that statement became wrong because he did not get it by email at all.

In relation to my friend’s notice of contention point, my friend has precisely formulated it in terms of an assertion that her client was required to be invited to make representations within a closed finite period with discernible start and end points. Now, we take issue with that as a matter of text.

KIEFEL CJ: Before you go on with the argument, what do you say about whether or not the respondent is entitled to put on a notice of contention? It might even be beyond leave ‑ ‑ ‑

MR JOHNSON: Yes.

KIEFEL CJ: ‑ ‑ ‑ if no issue was raised in the court below.

MR JOHNSON: I do not think the case was put precisely that way below. There was criticism by the court below of that statement that I just took your Honours to at page 11 and the grounds of appeal did not raise the point, and we probably are in a situation where leave is required.

EDELMAN J: Why? What is the authority of this Court concerning the meaning of the words “failed to decide” in rule 42.08.5? That is the rule that provides for a notice of contention.

MR JOHNSON: Yes.

EDELMAN J: There is no express requirement for leave, although one may perhaps be implied or, depending upon what this Court has said about the words “failed to decide”, it may be a form of entitlement.

MR JOHNSON: As I understand it, this is not a failure to decide in the sense of the court below failing to decide this argument which is sought to be put.

KIEFEL CJ: But the point is the court might not be regarded as having been in a position to decide so how could they fail to?

EDELMAN J: I mean, it is not a notice of contention at all because that would not fall within 42.8.5 and would that permit the point even to be raised?

KIEFEL CJ: Might be a matter upon which both parties will need to put a note in, I think, because I think, as Justice Edelman is pointing out, it might be a matter which goes beyond a question of leave. It might be entitlement – a question of entitlement altogether. Ms Mitchelmore, perhaps if you would put on – provide a note within seven days and Mr Johnson responds within seven days.

MR JOHNSON: Your Honour, could I just say that, subject to that, our answer to the notice of contention was going to take the form of slowly going through seriatim those propositions and the appropriate part and drawing the Court’s attention, in particular, to rule 2.55 – sorry, not rule, regulation 2.559 and in relation to that rule – sorry, I really should – I should just reverse a little bit. It is regulation 2.52(2)(b) which sets the period for the representations. So the representations must be made - this is 2.52(2)(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.

GAGELER J: What day was that?

MR JOHNSON: The hand delivery was on 4 January. The email was sent on the 3rd ‑ ‑ ‑

STEWARD J: You do not contend he was given it by email – it was by physical delivery?

MR JOHNSON: We are relying on the physical delivery.

STEWARD J: Thank you.

MR JOHNSON: Just in relation to 2.55, that sets out various different means of giving of documents relating to proposed cancellation, cancellation or revocation of cancellation and that regulation came to apply here through the combination of paragraphs (a) and (c) of 2.55(1), so this rule was applicable, and it sets out a number of different ways of giving documents.

One of them, in 2.55(3), is to give the document by “handing it to the person personally”, and there is another in (d) - so that is in (3)(a) and then in (3)(d)(ii), there is an option of transmitting by “email” to the last email address known to the Minister.

Now, we say that the notice was valid, regardless of whether or not there was a mistake in relation to the use of email. But could I just draw your Honours’ attention to regulation 2.55(9), because it is a little bit unusual. It allows to be understood much more what we have said in paragraph 19 of our reply. The provision says:

If:

(a) the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so –

If I could just pause there, let us suppose that using the wrong email address or using an inappropriate email address was an error, and:

(b) the person nonetheless receives the document or a copy of the document;

the Minister is taken to have given the document to the person and the person is taken to have received the document:

(c) at the time specified by this regulation for that method –

That is, for email, or:

(d) if the person can show that he or she receive the document at a later time–at that later time.

Now, here it is agreed that the respondent did receive the document on the later date, namely the 4th. The bottom line is that we say that the actual invitation was not invalid. But also more particularly we say that as a matter of construction, section 501CA(3) did not require the invitation to specify a finite period with a start and an end point identified. Rather, the requirement under 501CA(3)(b) was to:

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.

So the documentation could leave the applicant to ascertain that, or the person to ascertain that. It does not need to actually specify the dates. We did mention ‑ ‑ ‑

KEANE J: It could have said, “We invite you to make representations within the period and in the manner ascertained in accordance with the regulations.” It could have said that but did not.

MR JOHNSON: It said a number of things. Leaving aside that contentious statement on page 11, which was doubtless believed to be so when the letter was composed, there are statements back on page 10, where it says:

Time-frames to make representations about revocation

Any representations made in relation to the revocation of a mandatory cancellation decision must be made within the prescribed timeframe. The combined effect of s501CA(3)(b) and s501CA(4)(a) of the Act and Regulation 2.52 of the Regulations is that any representations MUST be made within 28 days after you are taken to have received this notice.

That was a compliance with the provision and a query whether the notice then becomes invalid because of any mistake on page 11. We submit that it does not because there was no need for that additional step to be taken in any event. So what we say is that the invitation was valid. We say that it did not need to specify – to identify a particular start and end date, (a) because of the way in which the provision is drafted, and also we referred not as authority but by way of analogy to a statement in another case called BMY18.

The short point is just noted in paragraph 9. This was in relation to another provision of the Act, section 66(2)(d)(ii). They are different words, but even in that context it was held that there was no need for the Minister to state the time within which in that case the merits review may be sought. Then we say that, either as a consequence of what we say in paragraph 18 or as a consequence of what we say in paragraph 19 of our reply, the invitation was here valid.

So I realise that it becomes a little bit dense, but what we, particularly with the addition of what I just said, say in the reply in those last paragraphs is something that we are happy to rest upon. So that just leaves the general question of principle as to whether – as to grant of leave that has been raised.

GAGELER J: Mr Johnson, can I just understand the way in which you rely on regulation 2.559. What do you say was the ‑ ‑ ‑

MR JOHNSON: Because of 2.559 ‑ ‑ ‑

GAGELER J: You have to find an error. The Minister purporting ‑ ‑ ‑

MR JOHNSON: Let us assume that addressing the email the way it was addressed was a mistake.

GAGELER J: The Minister purported to give the document personally. I think that is your case.

MR JOHNSON: Yes, yes, exactly. So, therefore, he becomes deemed to have received it on 4 January.

GAGELER J: The day he actually received it.

MR JOHNSON: Yes, indeed, but the question of when he actually received it is not the same as whether or not the notice was valid. What we are saying is that the notice was valid, and any mistake would not have gone to the validity of the notice because that detail was not one that needed to be given anyway. But, in fact, he is deemed to have received the notice in the way that we set out there in paragraph 9 and ‑ ‑ ‑

GAGELER J: But the error is the error in the content of the notice.

MR JOHNSON: In that particular paragraph, yes, that is right. It is an error ‑ ‑ ‑

GAGELER J: I misunderstood you.

MR JOHNSON: It is an error in a statement, that is that impugned statement on page 11 that did not need to be there anyway to achieve validity. That is probably the simplest way of putting it.

KEANE J: Is not the problem, though, Mr Johnson, 501CA(3)(b) provides that the Minister must:

(b) invite the person to make representations to the Minister within the period and in the manner ascertained in accordance –

et cetera. Now, that, on one view, might indicate that the invitation might have to crystallise that period. That is one possibility.

MR JOHNSON: We say the say the more natural reading is not that ‑ ‑ ‑

KEANE J: You say the more natural reading is just to leave it to the recipient to get the regulations and work it out for himself?

MR JOHNSON: That is right, and particularly, perhaps – yes, yes.

KEANE J: Accepting that, then you say what is then said on page 11 does not matter. But page 11 states the period beginning on the 3rd. That is wrong. We are agreed on that?

MR JOHNSON: Yes.

KEANE J: So insofar as the notice says that, how is it not non‑compliant with (3)(b)?

MR JOHNSON: Because it also has the other statement to which I referred which renders it valid, and it is a detail which did not need to be included ‑ ‑ ‑

KEANE J: But you say it adds a detail that did not need to be included, but it is, and it gets it wrong, so what the notice actually says is distinctly not what (3)(b) contemplates. Is that not so?

MR JOHNSON: Well, no, I do not concede that, your Honour. Certainly the statement on page 11, if we were looking at that in isolation, that might be contended, but we are not looking at it in isolation because there are these other statements as well, particularly the one that I referred to at page 10 and so that is the point. Unless there is anything else from your Honours, those are our submissions.

KIEFEL CJ: Yes, thank you, Mr Johnson. The Court reserves its decision in this matter and adjourns to Tuesday, 8 December at 9.30 am.

AT 12.42 PM THE MATTER WAS ADJOURNED