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High Court of Australia Transcripts |
Last Updated: 2 September 2024
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Melbourne No M19 of 2024
B e t w e e n -
PLAINTIFF M19A/2024
First Plaintiff
PLAINTIFF M19B/2024
Second Plaintiff
PLAINTIFF M19C/2024 (BY THEIR LITIGATION GUARDIAN PLAINTIFF M19B/2024)
Third Plaintiff
PLAINTIFF M19D/2024 (BY THEIR LITIGATION GUARDIAN PLAINTIFF M19B/2024)
Fourth Plaintiff
PLAINTIFF M19E/2024 (BY THEIR LITIGATION GUARDIAN PLAINTIFF M19B/2024)
Fifth Plaintiff
and
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Defendant
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 28 AUGUST 2024, AT 9.28 AM
Copyright in the High Court of Australia
____________________
MS G.A. COSTELLO, KC: May it please the Court, I appear with MS S.M.C. FINEGAN for the plaintiffs. (instructed by Asylum Seeker Resource Centre)
MR G.A. HILL, SC: Your Honour, I appear with MR N.D.J. SWAN for the defendant. (instructed by Australian Government Solicitor)
HER HONOUR: Thank you. I just thought I might clarify the papers that are necessary for me to deal with this matter. There is an amended application for constitutional or other writ filed 21 July, a response to that filed 14 August, and an amended reply of 21 August. Then I have four affidavits: the affidavit of the second plaintiff sworn 8 February, the Milton affidavit affirmed 16 February, and then two affidavits sworn by Ms Stone of 27 March 2024 and 12 August. Then finally, a joint book of authorities. Am I missing anything?
MS COSTELLO: No, the only thing is I am not sure about that first date, I will just need to check that. In terms of the first one being ‑ ‑ ‑
HER HONOUR: Your amended application for constitutional or other writ.
MS COSTELLO: No, just the affidavit of the second plaintiff. It was filed on 27 February, that is the affidavit of the second plaintiff, your Honour, and the affidavit of Ms Milton was filed on 27 February.
HER HONOUR: I took the sworn dates. I am sorry.
MS COSTELLO: Yes, your Honour.
MR HILL:
Your Honour, just while we are trying to put all papers
together ‑ ‑ ‑
HER HONOUR: Yes, please.
MR HILL: ‑ ‑ ‑ we had a supplementary bundle of authorities, which is some historic provisions of the Migration Act which we hope will explain a point that will become clearer when I address the Court. My learned friend has a copy. Would your Honour like to have it now or as I come to it?
HER HONOUR: You can choose.
MR HILL: I will hand it to your Honour when it becomes relevant.
MS COSTELLO: Now, your Honour, not to create any more paperwork but only to provide a structure for my oral submissions, we have provided the Court with a short outline of oral submissions, if it is of assistance.
HER HONOUR: I have read that, thank you. We might come to the order in which we might address the grounds. It seems to me, on reflection, looking at it, that some of the later grounds really should come first.
MS COSTELLO: Yes, your Honour so in ‑ ‑ ‑
HER HONOUR: It is a matter for you, but in terms of resolution it would seem to me that some of the earlier grounds about notification and service really come chronologically first before you even get to the cancellation decision and whether or not it is reasonable.
MS COSTELLO: Yes, your Honour. You will see that the way that we propose to address the Court is that – in respect of ground 2 – to make submissions about ground 2, which is the breach of section 120, and ground 5, which is the notification error, in one block – as they do perhaps chronologically belong together – the first ground, which is the failure to consider the statutory consequence of cancellation, as you say, your Honour, I respectfully adopt your observation that chronologically it could after and it certainly could be addressed later. If I could perhaps start with ground 2, and if it was to be chronological it would be ground 2 then ground 4, then ground 1 – ground 2, 5 and then 3.
HER HONOUR: It is a matter for you, it just seemed to me that there was a logic to them.
MS COSTELLO: Yes, your Honour. In terms of that logic, I will start then with ground 2 and ground 5. Ground 2, your Honour, is in respect of a breach of section 120. As your Honour is well familiar, the analogous grounds of section 424A and 359A in Part 7 and Part 5 have been held to be jurisdictional errors by analogy with the well‑known case of SAAP. There were matters that fell within the usual requirements of section 120 as being relevant information requiring disclosure. That is not controversial in this case.
The controversy arises as to whether the notice required to be given under section 120 was given or not. In circumstances where the Minister’s contention is that the matters that had to be disclosed as relevant information were disclosed in the notification under 119, which then leads your Honour to a consideration as to whether that notification under section 119 was defective.
Now, for seven reasons –
which you can see there in paragraph 6 of the oral outline – we
submit that the notification
under section 119 was defective. Looking at
section 119 as it was at the time of notification, having been changed by
legislation
subsequently to the notice, the section 119(2) stated
that:
The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
We submit that the delegate misconceived the notification power, thinking that regulation 2.55 was prescribed. We say regulation 2.55 was not prescribed. It was not prescribed because section 494A of the Act pertained to notification and section 119(3) of the Act also pertained to notification orally. So, it cannot be that notification under section 119 had to be done under regulation 2.55 when a different section of the Act, rather than the regulations, provided for another kind of notification.
HER HONOUR: Just so I understand the argument, you accept – I thought – that regulation 2.55 provided a prescribed method. It existed, let us put it neutrally.
MS COSTELLO: Yes, your Honour.
HER HONOUR: So, there is a prescribed method, you just say it is not a prescribed method which is a complete answer to the notification requirement. Is that the way you put it?
MS COSTELLO: The way it is put is that, under
section 119(2), because it says:
The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
What that says is that calls for a singular prescribed way. So, if there
is no singular prescribed way, in circumstances where “prescribed”
in the definition section means “prescribed by the regulations” then
the Minister must reach a state of satisfaction
as to what the Minister
considers to be appropriate for notification in the given case. If
section 494A was not in the Migration Act at the time then it might
not be a problem, but here you have regulation 2.55 purporting to
think – you know, the regulation
thinks it covers the field but in
fact section 494A provides something irreconcilable with
that.
HER HONOUR: And what is the irreconcilable aspect of it?
MS COSTELLO: Regulation 2.55(3) said that:
the Minister must give the document in one of the following ways –
But section 494A of the Act said that:
(1) If:
. . .
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate –
Including methods in 494.
HER HONOUR: Can you just explain to me why 2.55 is not caught by that first limb of that section?
MS COSTELLO: Sorry, the first limb of which section, your Honour?
HER HONOUR: Section 494, which says there is a prescribed way, and the prescribed way is multiple ways or different ways it might be done, as I read regulation 2.55.
MS COSTELLO:
So, 494A provides some coverage guidance in 494A(1)(b), and at the end of
reading (i) and (ii) of (b) we reach the conclusion that
494A tells us that:
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
The issue here is the state of satisfaction that the delegate had to
reach in deciding how to notify, and if the delegate is –
which we
submit your Honour ought to find – just saying, I am going to
notify under regulation 2.55, the requisite state of
satisfaction, which is
how does the Minister consider that it is appropriate to notify the person in
this case, has not been reached.
There is a difference in the notification
provisions in 494A and regulation 2.55 in respect of whether it is the
last known address
or the last known address or the last known address given to
the Minister for the purpose of correspondence.
There are differences between the notification content of 2.55 and 494A, and there is a qualitative difference in the state of satisfaction required if the delegate properly understands the task, which gave the delegate more freedom to consider how to notify than the delegate may have realised if the delegate was merely just applying 2.55. What we say happened here is that the delegate proceeded as if the prescribed way was 2.55, and that was an error because the presence of 494A meant that 2.55 was not the prescribed way.
HER HONOUR: I am left with a question of construction at the intersection between 494A and 494B and regulation 2.55 read with 119 and 120.
MS COSTELLO: Yes, your Honour. The last
constructional task that arises under 119 is just to see also that 119(3)
says:
The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
So, there is another way that takes the manner of notification beyond the
narrow pathway of 2.55.
HER HONOUR: Can I raise three questions
with you about 119 that shall answer my concerns. Section 119
says:
the Minister must notify the holder –
by giving particulars and inviting them to do certain things.
Subsection (2) says:
The holder is to be notified in the prescribed way –
And, as I think you accept, “prescribed way” is defined in
the Act.
MS COSTELLO: “Prescribed” is defined in the Act, your Honour, yes.
HER HONOUR: Yes.
MS COSTELLO: Yes, your Honour?
HER HONOUR: And
“prescribed” as defined tells us to go somewhere to look for it.
So, section 5 just says:
prescribed by the regulations.
MS COSTELLO: Yes, your Honour.
HER HONOUR: So, I go to the regulations, and I have regulation 2.55. Why am I not in 494B?
MS COSTELLO: Why are you not in ‑ ‑ ‑
HER HONOUR: In
section 494B, which tells me that:
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister . . . and
(b) state that the Minister must do so by one of the methods . . . the methods are as follows.
And it tells you to follow the method.
MS COSTELLO: Because the methods are not the same in the 494 area of the Act and 2.55, because there is a distinction between the last known address in those two places.
HER HONOUR: I see. Thank you.
MS
COSTELLO: And also that, whilst 2.55 might deem notification given in a
certain way to have been effected within a certain timeframe, for
example, that
is a different question to whether the person notifying understood their task
and the decisional freedom and discretion
they had in choosing how to notify.
There is a case which was helpfully cited in our learned friend’s
submissions where the
provisions were considered, and that is EVE21. In
EVE21 [2023] FCAFC 91; (2023) 298 FCR 57, at page 69, Justice Perram,
with whom Justices Rofe and Feutrill agreed, observed at paragraph 48
that:
Regulation 2.55(3) does not, in my view, purport to prevent the power in s 494A(1) being exercised; even if it was ambiguous in that regard, it would not be construed that way because of s 13(1)(c) of the Legislation Act and, even if, properly construed, it did purport to prevent the power in s 494A(1) being exercised it would be invalid and would be read down under s 13(2) . . . Consequently, I do not accept that reg 2.55(3) prevents the Minister from exercising the power in 494A(1).
At 49:
It will follow from the foregoing discussion that I would accept that there are circumstances in which reg 2.55(3)(c) may be invalid.
And cites section 13 of the Legislation Act. Clearly, at a
legislative level, the difficulty in reconciling these two
provisions – the Act and the regulations –
was recognised
and the conflicts were addressed in legislation, and the joint bundle of
authorities provides for you the legislative
documents that show you the changes
to both the regulations and the Act. If your Honour has the joint book of
authorities, if you
look at page 23 of the bundle, you are in the
Migration Amendment (Giving Documents and Other Measures) Act, and you
can see that sections 119(2) and (3) were entirely repealed and substituted
for the words:
The notification under subsection (1) must be given in the prescribed way.
And then at
page 25 ‑ ‑ ‑
HER HONOUR: These are amendments post‑dated.
MS COSTELLO: Yes, they did.
HER HONOUR: What is my authority to take into account these amendments after the relevant facts? Is it a matter of statutory construction?
MS COSTELLO: I am not able to assist your Honour with authority to take it into account. If your Honour is not assisted by the submission ‑ ‑ ‑
HER HONOUR: It is not that I am not assisted, I just want to know that what I am doing is right. It is unusual in a question of statutory construction at a particular point in time to look at subsequent amendments unless it is confirmatory of either a decision that has been made or someone can tie it to something which explains it, otherwise one looks at the question of construction at the time of relevant events.
MS COSTELLO: Yes, your Honour. Indeed, it is appropriate for your Honour, of course correctly, to look at the legislation at the time that the notification was given. What I was seeking to do was to say there is a case – EVE21 – which raised the issue of the invalidity of 2.55, given this difficulty with 494A and the fact that it is a regulation seeking to trump an Act, and then the context of this case is that that very irreconcilable issue was addressed by a legislative amendment which removed from section 494A any role in notification on cancellation decisions and made clear that the prescribed way in section 119 is the regulation.
I would say it is just a way of conceptualising that there was a difficulty with these provisions, which means that it made it very difficult for the delegate to get the task right, and that difficulty has been subsequently resolved through legislative amendment targeted to removing this clash between the regulation and the legislation, which, in our submission, indicates a parallel argument that gives force to our argument, which is to say there is an error here in treating regulation 2.55 as the prescribed way. It is such an error that, indeed, Parliament sought to fix it. The explanatory memoranda around the changes to 119 and 494A describe it as a clarification, but we submit that it is ‑ ‑ ‑
HER HONOUR: These are the documents under tabs 5 and 6 of the joint book of authorities?
MS COSTELLO: Yes. You can see that the legislative changes are in tabs 3 and 4, and then the explanatory memoranda and statement about the changes are in 5 and 6.
HER HONOUR: Which parts of 5 and 6 do you rely upon?
MS COSTELLO: Pages 41, 47 and 50, your Honour.
HER HONOUR: Take me to the passages you say assist you, please.
MS COSTELLO: Yes, your Honour. I had taken you to 23 and 25 of tab 3. Then at tab 5, which starts at page 40, at page 41 you can see that in the Migration Amendment (Giving Documents and Other Measures) Bill 2023, about three‑quarters of the way down the page ‑ ‑ ‑
HER HONOUR: This is the explanatory memorandum to the Bill?
MS COSTELLO: Yes,
your Honour. There is a heading:
Giving documents for character‑related cancellation decisions and actions –
And it describes that:
The amendments made to the Migration Act by the Bill create a more transparent and coherent framework for notifications of cancellation‑related decisions and actions. Together they:
Your Honour, I pause to say
section 119(3) that enabled that oral versions removed:
And I
would say, in contrast, there was an inability for the regulations to specify
the method of giving documents because of the
conflict with 494A(1). In
the next paragraph:
In particular, subsection 494A(1) of the Migration Act provides that if a provision of the Migration Act or the Regulations requires or permits the Minister to give a document to a person, and the provision does not state that the document must be given by a method specified in section 494B or by a method prescribed for the purposes of giving a document to a person in immigration detention, the Minister may give the document by any method that they consider appropriate. The amendments in the Bill clarify that subsection 494A(1) does not apply to cancellation‑related documents, which are intended to be covered by the method(s) prescribed by the Regulations.
HER HONOUR: I know in the response, at paragraph 17, the
Minister relies upon the opening paragraph of that explanatory memorandum, where
he
identifies that it was to improve and clarify. You take issue with that, I
assume.
MS COSTELLO: Yes, that is something that one might
describe as a self‑serving statement, in a sense, in the explanatory
memorandum seeking
to not concede that there is a flaw in the previous law but
to fix it without conceding the problem. It is a matter of statutory
construction for your Honour as to how these provisions operated at the
time of the notice. At page 47, at paragraph 20, there is
a
statement:
The intention of this substitution is to ensure that the Minister must notify the holder using the method prescribed by the regulations.
So, it is described as a clarification, but, in our submission, what
those legislative and regulatory changes did was to change the
law so that there
was no longer the discretionary and decisional freedom to the Minister to choose
how to notify.
In the facts of this case where you have a long‑standing protection visa and then only an address given in the context of a citizenship application rather than in respect of the visa itself, the choice to notify to the address provided to the Minister for the purposes of the citizenship application, as opposed to the original details provided for the visa application, and the choice to only send this by registered post to the first plaintiff and not take other, perhaps, appropriate steps such as finding out the address through Medicare or Centrelink reinforces what went wrong here.
If the person notifying had realised their job was to decide, well, what is the appropriate way to notify in this case, then factors such as this is a protection visa that they have held for a number of years and we have not had an updated address in that context in circumstances where we now know there is this other address provided for a different process, it could have been a different method of notification had the decision‑maker realised that they had to consider what was the appropriate form of notification. Aside from that, the formation of the state of mind ‑ ‑ ‑
HER HONOUR: Before you get to that formation, I think I may be assisted by at least some assessment or description of the relevant facts. As I read them, yes, notification was sent, consistent with the process set out in regulation 2.55, and I have heard your arguments about that, but I do not know that it is a fair summation of the facts to say that they took no further steps, because as I read the Milton affidavit at 21, there was at least some attempts made to call mobile phones. So, I would be assisted, I think, by at least some assessment or submissions about those facts.
MS COSTELLO: Yes, your Honour.
HER HONOUR: Only at a time convenient to you, Ms Costello.
MS COSTELLO: That is perfectly fine.
HER HONOUR: I should say that there were two groups of phone calls made, I think, as I read the affidavit.
MS COSTELLO: Yes, your Honour. Looking at the affidavit of Michelle Stone ‑ ‑ ‑
HER HONOUR: Which one, the first or the second?
MS COSTELLO: The first, 3 April 2024. If you look at page 69 of the exhibits, you can see – I will not say her name, given the pseudonym – on page 69, this is the application for review of the citizenship refusal by the second plaintiff, the wife, and you can see that there are two phone numbers given, and the second one ends in “789”, and that is at December 2016. Then, if you would look at page 47 in the same exhibit, you can see an application for review of decision – that is, the citizenship decision – by the first plaintiff, the husband, and you can see that the mobile phone number ends in “789”, and that is December 2016.
The document I think your Honour was referring to a few moments ago is in the affidavit of Ms Milton, which is affirmed on 16 February 2024. At page 22 of the bundle, we can see a case note, and you can see that on 30 October there is a phone call to a phone number which is ending in “445”, and then on 30 October, 10 minutes later, there is a phone call to a phone number ending in “051”. Then, on 15 November ‑ ‑ ‑
HER HONOUR: You accept that “051” is the telephone number of the second plaintiff?
MS COSTELLO: Just to go back to that other thing that I ‑ ‑ ‑
HER HONOUR: If you went back to page 69 of the first Stone affidavit, those numbers, as I read it, match.
MS COSTELLO: If I could take you to – when we go to the Stone affidavit at page 47 ‑ ‑ ‑
HER HONOUR: I meant page 69. I am dealing with the second entry on the case note, not the first.
MS COSTELLO: Yes. At page 69, which is the wife’s application.
HER HONOUR: Correct. I am just concerned that you accept that the first mobile number on that page matches the number that was called for the client’s wife on ‑ ‑ ‑
MS COSTELLO: Yes. Yes, I do, your Honour.
HER HONOUR: Thank you.
MS
COSTELLO: That is the wife’s application. It has two phone numbers
in it “051” and “789”, and the husband’s,
which I
have taken you to, has one number in it, which is “789”. Now, you
will see on page 22 that “789”
was never called. In
circumstances where the Minister has notified to the address given in the
context of the application for a
review of the citizenship decision, they have
chosen to notify to the physical address given in that context, but they have
not called
the phone number that appears on pages 69 and 47. So, you will
see that that first number, the “445” number:
Phoned client for LKA – number disconnected –
That phone number being “445”. Then the client’s wife
is called on “051”, but it seems, most unfortunately,
that they have
not called the number ending in “789”.
HER HONOUR: I know, but – I assume for the moment that is right – they have called the wife’s number, both before sending out the notice and after the notice is sent – or the date that the notice is sent, and then five days later after the notice is sent.
MS COSTELLO: Yes, they have called one of those phone numbers provided in December 2016, that is right, your Honour, but on the Minister’s case there is no obligation to notify the wife or the second plaintiff.
HER HONOUR: No, I am dealing with your case. Your case is regulation 2.55 was not prescribed, they should have done something else, they had other information available to them and they took no steps in relation to that information, and ‑ ‑ ‑
MS COSTELLO: It would be an overstatement to say “no steps”, your Honour.
HER HONOUR: That is why I am taking you to these pages, because they obviously at two points, both before the notice was sent and after the notice was sent, attempted to contact, first of all, the client – they had a number which they rang which was disconnected – and then they, second, rang the wife on multiple occasions, or sought to contact her on multiple occasions.
MS COSTELLO: Yes, your Honour. They did attempt to contact the wife.
HER HONOUR: They contacted her, they left voice mails.
MS COSTELLO: Yes, your Honour.
HER HONOUR: And asked her to phone back.
MS COSTELLO: Yes, your Honour. Just returning to my script, so to speak, in terms of why the notification under section 119 was defective – and also, as your Honour has raised, we run the argument that the failure to make further inquiries was unreasonable – the relevant policy, which is in the joint bundle of authorities ‑ ‑ ‑
HER HONOUR: Sorry, are we going to come back to the other factual matters that you rely upon? As I understood it, you have taken us to the citizenship application. I had also understood that you had sought to – in paragraph 56 – as I understood it, should have tried harder to track down the first plaintiff, and you have taken us to the citizenship material, which is a few years earlier, and then also there was a complaint about the information which was available to Centrelink or Medicare. Do you still rely upon that fact?
MS COSTELLO: Yes, your Honour.
HER HONOUR: Should we deal with that now, so we have completed the factual analysis on this ground?
MS COSTELLO: Yes, but just in terms of that factual analysis, I would preface it by just referring you to one matter in this policy.
HER HONOUR: Yes, please.
MS COSTELLO: So, in the joint bundle of
authorities, at page 153, this is the policy guidance that was in force at
the time of the notification.
There is a heading on 153:
Identifying the last address known to the Minister (reg. 255) –
First of all, if I could just take you halfway down the page, it
says:
Under policy, enquiries to find the client should be conducted if:
Officers should contact the following third parties, if appropriate, and when doing so much bear in mind privacy issues:
The last known address does not depend on the officer’s knowledge coming from a particular source. The information from a third party source also does not need to be verified in any particular way . . . What is reasonable will depend on all the circumstances of the case.
And there is a reference to previous case law:
As a matter of policy, officers should attempt to contact the client (for example, by telephone or email) to verify that an address provided by a third party actually belongs to the client.
Of course, the policy does not mandate a method of notification, I do not
put it that high, but I say that, given it is a fact‑intensive
inquiry
looking at reasonableness, one fact is that the very policy guidance provided to
the delegate, in respect of identifying
the last address, provided guidance to
make inquiries with Medicare and Centrelink and so on. Here, no inquiry was
made to Medicare,
no inquiry was made to Centrelink, and the phone number that
was the last known phone number, ending in “789” –
one of
the last known phone number, but it was the last known phone number given by the
plaintiff who they were trying to notify,
whereas the number they called three
times was the wife’s number – was not telephoned.
HER HONOUR: Do you accept that the policy itself at least accommodates the possibility that where you have a difficulty finding someone that you actually would ring the wife?
MS COSTELLO: Yes, absolutely, but if you have been given two phone numbers by the wife you might, I think, reasonably ring the other one. Here, they are using the last known, I will say, details to cover the field, provided in the context of the citizenship case, but not ringing the phone number that the wife has put on the form. So, there is some step taken, but not enough to reach the level of what is reasonable in this case.
Not that the decision‑maker could have known this at the
time, but the phone number that was called, of the second plaintiff,
was
not – sorry, I am just finding something. Just before I come to
that, similarly, while I have you in the policy guideline,
page 118 of the
same guidance, under the heading:
Method of giving notice of cancellation ‑ ‑ ‑
HER HONOUR: What page, again, was that,
Ms Costello?
MS COSTELLO: Page 118 of the JBA provides
that, under the heading:
Method of giving notice of cancellation –
The guidance says:
The Act does not prescribe a method by which the notice of cancellation is to be given.
So, the situation that the delegate was in was opaque, in terms of how
notification should have been done, in terms of whether there
was a prescribed
method, but the guidance did say that the delegate should contact Medicare and
Centrelink if there had been a long
period of time since the address had been
given.
The affidavit of the second plaintiff, your Honour will have noted, does reveal that they, unfortunately, did give notice to the department of their new address after their moved to Victoria, but it was a couple of months after notification – it was in 2020 rather than 2019 – and so they did not receive that notification. At page 31 of the affidavit of the second plaintiff, you can see the Vodafone account for 2019 of the first plaintiff, which shows you the phone numbers were ending in “883” and “789” as at 2019. As a matter of objective fact, the phone numbers were ending in “789” and “883” and were not the number that in fact was called by the delegate on the page exhibited to Ms Milton’s affidavit, ending in “051”.
Those are the factual matters that what we said your Honour to be abreast of in respect of the notification. The other issue is that we make an argument about what “holder” means in section 119, and that is relevant for a couple of different grounds. In respect of ground 2, the breach of 120, the Minister’s argument is that ‑ ‑ ‑
HER HONOUR: There is
a question about whether or not, as I understand your argument, there is one
protection visa or three. Is that the way
it is put? Because your pleading
changed. Originally, the pleading was, I think, that – when I read
the original application
for constitutional writ – you said
that:
The First Plaintiff was the primary visa holder. His wife the Second Plaintiff and son the Third Plaintiff held visas dependent on the First Plantiff’s visa –
That was in the old paragraph 15. Then in the amended application,
as I read it now, it reads the plaintiffs allege that:
The First Plaintiff was the primary visa holder . . . The Protection Visa granted to the First Plaintiff . . . included the Second and Third Plaintiff as holders of the Protection Visa.
I read that as saying that there is just one visa. Is that the way it is
put, or am I overreading it?
MS COSTELLO: That is the way it is put, your Honour.
HER HONOUR: I see. So, it is now put that the first, second and third plaintiffs only have one visa between them. Is it put that way, or am I misreading it?
MS COSTELLO: What I
would say is that this is, again, a statutory construction task and the question
is what does “holder” mean
in section 119 – and the
holder is to be notified in the vexed way. Anyway, “holder” is
defined in section 5 of
the Act in a certain way, and that is
section 5 defines:
holder, in relation to a visa –
to be:
the person to whom it was granted or a person included in it.
In the most recent Stone affidavit, 14 August 2024, at page 27, you will see the visa grant notice.
HER HONOUR: Sorry, can you just give me that page number again, please.
MS COSTELLO: Page 27, your Honour.
HER HONOUR: This is the notification letter.
MS COSTELLO: Yes, your Honour. The letter starts
on page 27 and ends on page 30. It is a letter dated
27 September 2011. I just pause to
say that is a relevant fact in the
sense that this family was granted protection visa status in 2011 and it
was cancelled in 2019
in circumstances where they did not know there was a
notice of cancellation. It is a quite long period of time. What it says at
page 27, it says to the first plaintiff:
This letter refers to your application for a Protection visa . . . I am pleased to advise that a decision has been made to grant you a Subclass 866 (Protection) visa . . . The grant of your Protection (Class XA) Subclass 866 visa includes the following members of your family –
When one looks at section 5, which defines:
holder, in relation to a visa, means . . . the person to whom it was granted or a person included in it.
And when one looks at the evidence on page 27, we submit that
your Honour ought to conclude that “holder” within the meaning
of section 119 included the second and third plaintiffs because the visa
that was cancelled was granted to them also and/or included
them also. Of
course, your Honour, the other evidence which is in the same affidavit, at
pages 32, 33 and 34, is some evidence from
a database which shows you some
distinctions between the first, second and third plaintiff in terms of a visa
grant notice difference.
HER HONOUR: It has a unique identifier, unique grant number, and it says in relation to each of them that each visa is held by one person.
MS COSTELLO: Yes, your Honour.
HER HONOUR: Can I come back and deal with the building blocks which are probably more fundamental, and I take that the records are not challenged that are set out at pages 33 to 35, but if you look at and think about the process that has gone through in relation to the grant of a protection visa and then the subsequent consideration – I am putting it neutrally, now – of family members, then the criterion is different. One could have a grant of a protection visa to a first plaintiff but a denial in relation to what might be described as family because they do not meet the separate criterion in section 36.
I think that this issue about decisions was considered, in the sense of how many decisions are there – it is probably not directly relevant, but it might inform the question of statutory construction about how you read “holder” – by a Full Court of the Federal Court some time ago, about whether or not it was decision or three decisions and the way to look at it. I think these documents are helpful, but if one actually looks at the way in which the statute works in terms of the grant of a visa, you have different criterion under 36(2) depending upon where you are; (2)(a) and (2)(b). Does that not help to inform the way in which you might look at “holder”?
MS COSTELLO: Yes, your Honour. The provisions that are relevant in this particular statutory task are not only sections 119, 139, 140 and section 5 but also section 36. I respectfully your observation, your Honour, that the way that a person obtains a visa as a family member under 36 ‑ ‑ ‑
HER HONOUR: It is a distinction between (2)(a) and (2)(b)(i) and (ii).
MS COSTELLO: Quite so, your Honour. Yes.
HER HONOUR: And the other thing about that letter is I think it includes in it – and I must say I have not read it for half a day – something about that it was not legal evidence of the visa.
MS COSTELLO: It does. Yes, your Honour.
HER HONOUR: So, I think the building blocks, at least for me, which I would like you to address, and you may now well have done it: 36(2)(a) as distinct from (2)(b)(i) and (ii); the records which would seem to be consistent with at least a view of the way in which those provisions operate, being the ones at 33 to 35; and then, of course, you have the letter of notification. The decision I was thinking about in terms of, have I got one decision or two or three is BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) FCAFC 171. I am not suggesting that is a complete answer, but that is one where I found where there was a consideration of how many decisions you have, which might help to inform the way one looks at the “holder” question.
MS COSTELLO: Yes, and as I seem to recall, that was about the consequences for a holder if a visa had been refused or cancelled.
HER HONOUR: I must say, it is not directly relevant, but it helps to inform the way in which we might look at the statutory provisions.
MS COSTELLO: Yes, and I did read that in the context of this case, but I cannot remember whether they found it was one decision.
HER HONOUR: Well, you might have a look at it and have a think about that.
MS COSTELLO: Yes, indeed. Thank you. The other aspect of this is that your Honour will have seen – and as has our learned friend – many applications for visas, and generally it is one application. So, it is one application for the visa in which there is the sort of primary applicant, and then there is family members included in the application. There is a proforma box about whether the family members make their own claims or not.
Here, looking at the evidence you have, the
substance of the decision about whether to give the visas is dealt with by the
independent
merits reviewer in a decision starting at page 6 and ending on
page 22. You will see, under the heading:
RECOMMENDATION ‑ ‑ ‑
HER HONOUR: Sorry, what was that page, again?
MS
COSTELLO: Page 22, your Honour. That the reviewer recommended
that the first plaintiff:
be recognised as a person to whom Australia has protection obligations . . . The second named claimant and third named claimant be recognised as a member of the same family unit as a person to whom Australia has protection obligations –
Which your Honour recognises the language in 36(2)(b), which
provides that:
A criterion for a protections visa is that the applicant for the visa is –
either someone who is owed those obligations, or (b), someone:
who is a member of the same family unit as a non‑citizen who –
is owed those obligations. Here, the family makes one application, and a
protection visa – there is one grant in the grant
letter of a
protection visa which is stated to include “the following members of your
family”. Whilst the document asserts,
at 28:
This letter is not legal evidence of your visa.
our submission, your Honour is that evidence is what a court finds
to be relevant and probative, and here it is not for the Department
of
Immigration to say that the letter is not evidence of a visa. It is legal
evidence that a protection visa was granted, it is
here tended without objection
on this hearing.
HER HONOUR: Can I ask a different question? What is usually produced by way of evidence of a visa?
MS COSTELLO: Evidence of a visa is determined by the laws of the Evidence Act. The Evidence Act provides guidance as to what ‑ ‑ ‑
HER HONOUR: But your clients must have been notified.
MS COSTELLO: The clients receive notification – the clients’ evidence as to their visas correlates with exhibit MES‑11. I am not going to deny that the evidence of the visa is contained in 33, 34, 35, and in that evidence it shows that there is three separate pieces of evidence showing the visa they have, showing a different grant number and stating ‑ ‑ ‑
HER HONOUR: There are three things: there is a unique grant number and a unique evidence number and then an identification that there is one person for each visa.
MS COSTELLO: Yes, your Honour. That is right.
HER HONOUR: So, you accept there is three visas, you just say that for the purpose of construction of “holder”, it is broad enough to pick up and include the fact that they have separate visas.
MS COSTELLO: Yes, your Honour.
HER HONOUR: Thank you. You do not contend there is one visa, which is the way I had read your amended application.
MS COSTELLO: I contend there is one grant of a visa that includes the two family members, but the evidence of the visa that has been granted is segmented into three separate sets of documentary evidence that are individualised to those three persons.
HER HONOUR: Thank you.
MS COSTELLO: Then when we get to the definition of
“holder”, if the definition of “holder” bore more of a
resemblance
to the, say, documentary evidence of separate visas that
your Honour can see at 32 to 34, it might be simpler.
Instead:
holder, in relation to a visa, means . . . the person to whom it was granted or a person included in it.
Whilst we concede that the evidence shows three separate visas, there is
still room within the meaning of “holder” to
include plaintiffs two
and three because the visa was granted to them in one grant. The other
aspect – and this is a section
in relation to which I have found no
case law, and that is section 139.
There has been a focus in cases
around section 140, and whether natural justice applies to what are usually
called automatic cancellations,
but section 139 is interesting as it states
that:
If a visa held by 2 or more non‑citizens –
And I say that the visa is held by the three of them because the meaning
of “hold a visa” includes being the recipient
of a grant to you and
the other person. Then:
Subdivisions C, D, E, F and FA and this Subdivision apply as if each of them were the holder of the visa –
And section 119 comes under
subdivision E. We are in territory where, of course, there is exhaustive
treatment of natural justice,
but section 139 tells us that for the
purposes of section 119:
If a visa is help by 2 or more non‑citizens –
Then section 119 applies as if they were the holder of the visa.
So, Parliament’s intention, it should be concluded to be that
for where
visas are held by two or more persons, which we say they were because of the
meaning of “holder”, section 119
notification must be made to
plaintiffs two and three and not just to plaintiff one.
HER
HONOUR: A distinction is drawn, as you said, between 139
and 140, because if you go to 140 the premise for the application for
that section
is:
a visa held by another person because of being a member of the family unit of the person –
Which is in a sense this case, as I understand the way you put it.
Is 139 applying its terms?
MS COSTELLO: I am sorry, what do you mean by “its terms”?
HER HONOUR: It
says:
If a visa is held by 2 or more non‑citizens –
This is why I was asking you, is it one visa or is it three visas? I do
not know what:
If a visa is held by 2 or more non‑citizens –
means, and does it apply here? That is the factual question which I have
been trying to work through by reference to the helpful
materials you have taken
me to.
MS COSTELLO: We submit that the evidence of plaintiff one, two and three’s visa status is contained in those documents at 32 to 34, but the protection visa was granted to the three of them together, and so it is correct, in fact, to conclude that the protection visa in this case, which was a visa where there was one application for the visa and there was one grant of it, is a visa held by the plaintiff and his wife and child. So, it is a visa held by two or more non-citizens, particularly because “holder of the visa” includes all the people to whom the visa was granted, and the grant notice granted the visa to the three of them at once and not separately.
For example, a Medicare card would typically have a mum, dad and some kids on it, often. Each particular holder of the Medicare card has a separate number, and you could each get your own Medicare card if you needed it, I suppose, if the 17‑year‑old left home. But there is one Medicare card, and the Medicare card is granted to the family and then each one is given an identification number. The evidence of the Medicare card can be held separately on a number of different cards, but at the same time there is one Medicare card held by multiple persons.
Similarly here, the Commonwealth has granted a protection visa to a family, and then they have provided evidence that each person holds the visa in a separate set of evidence. Visa, like property, is a bundle of rights. So, the visa is held by persons who have a bundle of rights associated with that. The title, for example, of a property and what the right is of a person in that property are two different things, just as the status of someone holding a visa and the grant of that visa are separate from the piece of electronic evidence that shows that someone holds that visa. Even though the evidence of visa‑holding can be seen separately, that does not take them away from holding it together.
What
is also apparent from section 140(1) and (2) is that subsection (1)
provides automatic cancellation but says nothing about whether
notice must be
given to members of the family unit whose visas are automatically cancelled. By
contrast, section 140(2) specifically
states:
the Minister may, without notice to the other person, cancel the other person’s visa.
We submit that by a combination of looking at sections 139, 140, 119
and section 5, the correct conclusion is that notice of the cancellation
of
the protection visa had to be given to all the holders of that visa, and that
plaintiffs two and three were holders of that visa.
In the legislative
framework here, Parliament seeks to cover the field as to natural justice.
Having embarked upon that codification
of notification, the Act must be given
its effect, and section 139 and section 5 lead to the conclusion that
the non‑primary
holders of the visa – non‑primary in that
they did not make the protection claims – are holders of the
visa.
If you see it the other way, that they are not holders of the visa and they did not need notice, then that is a situation where natural justice is ousted, and natural justice must be ousted with clear words of necessary intendment. Looking at the gap in section 140, which does not say that the visa may be cancelled without notice, the better conclusion is that section 140 allows automatic cancellation of all the holders of the visa, but it does not deprive those holders of the visa from notice under section 119. Your Honour, I might move to another ground at this point.
HER HONOUR: Yes, thank you.
MS COSTELLO: I will go to ground 1 now, which can be encapsulated in saying that ground 1 is a failure to consider some of the statutory consequences of cancellation. We start with the accepted proposition that the delegate was obliged to consider the mandatory legal consequences of the cancellation in the framework of the Migration Act. That is established in the case of NBMZ, cited both in our submissions and our learned friend’s submissions.
The cancellation decision record, which is at page 8 of the second plaintiff’s affidavit, shows that the delegate considered some statutory consequences but not all those that needed to be considered. The delegate did not consider the statutory consequences in sections 46A, 189 or 198 for plaintiffs two or three. Given section 140 puts beyond doubt the automatic cancellation of the visas of the second and third plaintiffs, it inevitably follows that they, like the first plaintiff, are faced with statutory consequences under 46A, 189 and 198.
If you look at the reasoning in the cancellation decision which starts at page 8, we get to a heading ‑ ‑ ‑
HER
HONOUR: So, I am right that there are five consequences, not just the
statutory ones, that you complain about? Five legal consequences
that were not
considered. One was that:
the Second and Third Plaintiffs may be subject to immigration detention –
including indefinite detention.
MS COSTELLO: Yes.
HER HONOUR: The second was “may be removed” under 189 and 198 of the Migration Act.
MS COSTELLO: Yes, your Honour.
HER HONOUR: I think your application said 190 but you meant that, I assume.
MS COSTELLO: I apologise.
HER HONOUR: The next dealt with the fourth plaintiff,
that they:
may become an unaccompanied minor –
Do you still rely upon that particular?
MS COSTELLO: I do, but it is easier to rely on the mandatory framework consequences.
HER HONOUR: Right. Then the fourth was
that:
the Second and Third Plaintiffs would be subject to a ban on applying for a further visa under s 46A –
MS COSTELLO: Yes, your Honour.
HER HONOUR:
Then the fifth was, again that:
the Fourth Plaintiff, may be deprived of the benefits of living in Australia –
Do you still rely upon that one?
MS COSTELLO: Yes, rely upon it but I would seek the three statutory consequences as the primary argument here as they are so well supported by the authority of NBMZ.
HER HONOUR: Thank you. I interrupted, I apologise.
MS COSTELLO: No, thank you. It is helpful to have
your question, with respect. The cancellation decision at page 20, under
the heading:
Any consequential cancellations that may result –
We get two lines. They simply say:
If the visa holder’s Protection visa is cancelled, his wife and son would be liable for consequential cancellation under section 140 of the Migration Act.
I give this consideration a little weight against cancelling the visa.
Then you have the next heading:
Legal consequences of a decision to cancel the visa –
And I will not read out that paragraph, but all of that analysis of the
legal consequences of a decision to cancel the visa are confined
to plaintiff
one. At the bottom of the page, it says:
I give this consideration some weight against cancelling the visa.
So, you have here a disproportionate weighting of the consequences for
plaintiff one compared with the consequences of plaintiffs
two and
three.
HER HONOUR: Is it disproportionate? I thought it was a failure to take it into account.
MS COSTELLO: It is.
HER HONOUR: Sorry, just because you put it in terms of disproportionate weight.
MS COSTELLO: In the context of fact‑finding, your Honour, which is what inferences should be drawn from page 21 in reaching, we say, the correct conclusion that the delegate did not consider the statutory cancellations for plaintiffs two and three. We say the first indication that the delegate did not consider the consequences under the statute for plaintiffs two and three is this difference in the weight. So, if the delegate had considered the statutory cancellation consequences for the wife and son, more than a little weight would have been given.
It does not make sense to say, I give it some weight against cancelling the visa, that the first plaintiff is liable to the consequences in 46A and 189 and 198, and then at the same time only give a little weight in respect of plaintiffs two and three in the category above. We say that should lead your Honour to conclude the difference in that weighting is because the delegate did not consider those statutory consequences for plaintiffs two and three. That is the first reason.
The second reason we say your Honour should conclude that the delegate did not consider the statutory cancellation under the visa framework for plaintiffs two and three is that if the delegate had considered them the delegate would have said so, and the delegate did not say so. The delegate tells us exactly what the delegate considered as consequences, and all the delegate considered was the bare cancellation of plaintiffs two and three, on the one hand, and then the statutory consequences of cancellation for plaintiff one. You do not need to go beyond the language of this page to find elliptically the consideration of something that the delegate was on constructive notice of because there are all sorts of things the delegate should have known or should have thought about, but if the delegate does not say they have considered it then the delegate has not considered it.
The third reason that your Honour should infer that these consequences were not considered is that these are very serious consequences – not being able to apply for another visa, having to leave, potentially being detained – in the context of people who have held a protection visa since 2011, and had the delegate actually considered that a woman and child would be liable to detention, deportation and unable to apply again for the visa they had been living here on for eight years then the delegate would have said so. I will not repeat the written submissions on this point, but you will see in the written submissions a collection of the sort of phrases the Minister has repeated in why you should infer that these matters were considered, and that is in the amended reply at paragraph 1.
We have collected for you the various ways in which the Minister urges you to infer these considerations as being obvious – in the broad, you could characterise their submissions saying they are obvious, or the delegate must have been aware of them. We say you should not read into the decision record consideration of these things that are not contained in there. I will move now to a separate ground, your Honour.
HER HONOUR: That is completion of ground 1?
MS COSTELLO: Yes, your Honour.
HER HONOUR: Right, and we have done ground 2. We have 3, 4 and 5 to go – you have dealt with 5, as well, I apologise. So, grounds 3 or 4.
MS COSTELLO: Yes, your Honour. Ground 3 is that the cancellation decision is manifestly unreasonable. Here, we say that, again, looking at the decision record ‑ ‑ ‑
HER HONOUR: Sorry, just again, we have four matters you rely upon?
MS COSTELLO: Yes, but again I will show my cards and say that the main thrust of this ground is the unreasonable weight given to the proposition that the plaintiff refused the notice.
HER HONOUR: This is what is set out in 9.1,
subparagraph 2 of your amended application? Unreasonable in giving
weight:
to the fact that the First Plaintiff “failed to respond to the Notice or engage in the cancellation process... the recipient refused to sign for the article.”
Is that what ‑ ‑ ‑
MS COSTELLO: Precisely so, your Honour. Yes.
HER HONOUR: Thank you.
MS COSTELLO: This is a ground where it does not take
long to say it, but hopefully that does not mean your Honour
de‑weights the emphasis
we place on this argument. If you look at the
decision record, you see that under the heading – you see it on
page 20, and
the heading in bold is:
The visa holder’s past and present behaviour towards the Department –
And what the decision‑maker said was that:
The visa holder has failed to respond to the Notice or engage in the cancellation process. The Notice was sent to the visa holder’s last known address according to departmental records. However, information provided by Australia Post indicates that while delivery was attempted to this address, the recipient refused to sign for the article.
I give this consideration some weight in favour of cancelling the visa.
Now, to give this consideration weight in favouring the cancelling of the
visa must mean that the decision‑maker is holding
it against plaintiff one
as an adverse matter that he has failed to respond to the notice or engage in
the process. It must be inferred
or found on this reasoning that the
decision‑maker is concluding that plaintiff one himself refused to sign
for the article.
HER HONOUR: I am a bit confused. I thought this was a “no evidence” ground, and so a “no evidence” of the particular that I identified earlier, and I think that you accept that if there is a skerrick of evidence available to support the finding then we are not in “no evidence” territory. So, we are back to analysing in some detail, I think, what evidence there was about both of these matters.
We have dealt with the notification question already, and so that is one argument. I think you need to deal with it on the basis that you have lost that argument in terms of no notice; this is an argument put on the assumption that there was notice, I think. Otherwise, you do not get to it, do you? Then the second aspect to it, I think, is no notice is one aspect and then the second aspect is refusal to sign. So, no evidence of notice and no evidence of refusal to sign.
MS COSTELLO: Yes, your Honour. I would just say one more thing, though, and that is whilst there is no evidence that he has been given notice of it and there is no evidence that he refused to sign it, the taxonomy of arguments that are essentially, this is an unreasonable finding, no one could find this – the taxonomy is difficult to pin down in terms of the case law. As to whether you characterise this as irrational finding, unreasonable finding or a “no evidence” finding, the distinctions between these kinds of errors, I find, can be a little difficult to follow in the various cases. We seek to make the argument in plain terms that the delegate’s finding of weighing against the visa holder, his active rather than passive to failure to engage in the process, was irrational, unreasonable or based on no evidence.
HER HONOUR: I want to just make sure, I
had only understood 10.1, by your amendment, to be “no
evidence” because that is what 10.1
says. It is the same in
9.1:
in circumstances where there was no evidence –
So, 9.1 is where I should have been, I apologise, not 10.1. It may be
that you now seek to expand the grounds upon which you complain,
but I
understood it was a “no evidence” point.
MS COSTELLO: In 9.1 in the amended application, we say the delegate erred by giving weight in favour of cancelling the visa to the fact that – and then we say giving this matter weight was unreasonable and irrational in circumstances where there was no evidence that the first plaintiff knew about the notice or that it was the first plaintiff who had refused to sign for the notice.
HER HONOUR: That is why I am saying this is on the
assumption you have lost your no notice. It now is the notice was served
sufficiently to
give them notice, because that ground you have lost on the
assumption that this is the way I think it has to work, so I am now in:
there was no evidence that the First Plaintiff knew about the notice –
And yet I have a prescription against you, if you are wrong, that they
have got notice. So, that is one thing I would like submissions
on, and then
the second is:
no evidence that the First Plaintiff . . . had refused to sign for the notice.
when we have the, for what it is worth, Australia Post notification back,
and that is why I have said I have come back to –
if I start off as a
“no notice” case, that means no skerrick of evidence, I now have
these two aspects I have to deal
with, I think. I may have it wrong,
Ms Costello, I just want to make sure I understand the way you are putting
it.
MS COSTELLO: Yes, your Honour. Just in terms of your first question, if we lose on the notice point about “holder” and “prescribed”, et cetera, what that is about is deemed notice, it is not about actual notice. There is a distinction here in fact, which is that the delegate could sit there and say, notice has been given as required by the rules so that it is deemed to have been given. That is not the same thing as a conclusion that the notice has been received.
There is a distinction there that is readily understood in these cases, because there is a certain – to some extent, there is hoops that have to be jumped through for notice to have been deemed to have been given for time to start to run to lose your merits review rights, as they did here. That is one thing, but it is a different thing to transpose those deemed notice provisions into an actual finding that someone refused notice or failed to engage.
Here, what has gone wrong is that the decision‑maker, knowing that the notice has been returned to sender, finds that plaintiff one actively refused to engage in the process, and finding that it was him who refused the envelope. Perhaps I am back where you started, your Honour, and so there is no evidence that is capable of supporting that adverse finding and weighting of the matter against the plaintiff.
HER HONOUR: Thank you.
MS COSTELLO: The last ground is ‑ ‑ ‑
HER HONOUR: Do you still contend for what is set out in paragraphs 10 and 11 of your outline of oral argument; “hardship to family members” and “best interest of the children”?
MS COSTELLO: Yes, your Honour. In terms of the best interest of the children, yes, we certainly do rely on that one. Here you have – and they are not in evidence and unless our learned friend makes any alternative submission they do not need to be. It is uncontroversial that the delegate’s guideline was considered by the delegate, and one of the matters in that guideline was the convention on the rights of the child should be considered.
You can see in the decision record itself, rather than having to go to the guideline, that the delegate does go so far as to set out a heading on this and purport to consider the rights of the child, and that is at page 22 of the second plaintiff’s exhibit in the decision record. The delegate tells us that the delegate has considered Australia’s international obligations, and particularly the rights of the child. However, when one looks at pages 22 and 23, one sees that what is missing from the necessary analysis of the factor that the delegate asserts they are considering is actually any consideration as to whether cancelling the third plaintiff’s visa is in the best interest of the third plaintiff and whether cancelling these three visas is in the best interest of the five‑year‑old daughter.
HER HONOUR: There is a building block that we will just park for the moment, and that is the building block we talked about earlier. That is, whether or not actually we are talking about cancellation of the second and third plaintiff’s visas at this point because of the way in which section 140 operates, as the delegate has identified. That is not to say that the consequence of cancelling the first plaintiff’s visa does not take into account the matters that you have just taken me to. There is a slight distinction, I think.
MS COSTELLO: Yes. Earlier on I had made only muted submissions about considering these things as consequences of the cancellation. They rise again, though, at this point where the obligation that the delegate thought they were carrying out was considering the best interest of the child, but in fact the delegate did not consider whether it was in the best interest of the two children to cancel the visa, which would automatically mean cancelling the visa of the child and the wife.
HER HONOUR: Can I just understand that. At
page 19 – I think it is 19 – the
decision‑maker refers to the child, one of the
children:
5‑year‑old Australian citizen daughter.
At the foot of – I am using the numbers at the
top – page 19, the third‑last paragraph.
MS COSTELLO: Sorry, page 19, number at the top, is that?
HER HONOUR: Yes, if you go to the third‑last paragraph.
MS COSTELLO: “The degree of hardship”?
HER HONOUR: “That may be caused” and “any family members”. The delegate recognises there is a wife, 12‑year‑old son and five‑year‑old daughter. Do you have that?
MS COSTELLO: Yes. Yes, I do.
HER HONOUR: Then two paragraphs
later, the delegate notes that the plaintiff’s son, which is in the last
paragraph:
is school‑aged . . . may affect his education onshore –
But he could be educated offshore. That is the third plaintiff being
dealt with.
MS COSTELLO: Dealt with under hardship, not dealt with – is it in the best interest of this child?
HER HONOUR: I have not finished.
MS COSTELLO: Certainly.
HER HONOUR: I have to read these together. Then you say that despite the degree of hardship that is being looked at, that it should have been addressed again where?
MS COSTELLO: It should have been addressed in the consideration: what is in the best interest of the children? What is in the best interest of the children in relation to the cancellation of the visa?
HER HONOUR: And under the “Rights of the Child” on page 21? The reason why I raise that, Ms Costello, is if you then go to “Family Unity” the delegate addresses “best interests of the child” directly, at least in relation to one aspect of it.
MS COSTELLO: This is, I suppose, an argument that relies on a qualitative analysis of what is done here, in light of the required analysis.
HER HONOUR: By “required” you mean under the guidelines, is that what you mean?
MS COSTELLO: Yes.
HER HONOUR: What paragraph of the guidelines do you rely on particularly? You can tell me later; just so I am clear.
MS COSTELLO: Yes, we could put them in for you. They are not in evidence, the guidelines. But the guidelines ‑ ‑ ‑
HER HONOUR: If you are going to say to me – I think you are going to make a submission that says, this is compulsory, it has to be done and this does not meet it, then I think it is important that we understand precisely what is it you say is required and what is not met.
MS COSTELLO: Yes, your Honour. I will take that on notice.
HER HONOUR: Thank you, I would be very grateful.
MS COSTELLO: What I would say is
that part of not being in breach of the convention on the rights of the child is
the consider the best interest
of the children. So, the decision‑maker
talks about the concept of the need for family unity and says family unity will
not
be too much compromise, therefore it is not in breach of CROC. That is not
the same thing as considering what is in the best interest
of the children. In
our reply, at paragraph 3A, we refer to and respectfully adopt the
Justice Allsop when assessing the best interest
of the child:
The task is a humane and analytical one: of identifying what are the best interests of the children, and then considering them in the way the law requires.
What is missing here from the pages that your Honour has drawn our
attention to is an analysis of what is in the best interests of
the
12‑year‑old and five‑year‑old here.
HER
HONOUR: I just want to be direct. You say there:
The delegate failed to identify the children’s best interests let alone consider them.
What I am saying to you is they are at least referred to. It may not be
that what the delegate has done, on your submission, is sufficient,
but there
are at least three spots we have identified where at least the best interests of
the child were referred to; the language
is used. It may not be sufficient, but
I do not think we can say they failed to identify the children’s best
interests.
MS COSTELLO: There was not a failure to identify the consideration. The consideration was identified. There was an inadequate evaluation of the consideration. In circumstances where what we are looking at here is the risk of a child being placed in immigration detention and, in a circumstance where the five‑year‑old is an Australian citizen, her family being placed in immigration detention. That is a very serious matter and there is not a consideration of that.
Is it in the best interests of those two children for the protection visa to be cancelled, depriving the 12‑year‑old of the visa altogether and risking the five‑year‑old finding themselves either in detention with the family or separated from the family? The Minister’s argument is, well, they could have been put in community detention, but that is still detention.
HER HONOUR: What about that last paragraph on that aspect, at page 21? As I understand your submission, you say that does not go far enough.
MS COSTELLO: What I say is that ‑ ‑ ‑
HER HONOUR: Is that right?
MS COSTELLO: Yes, because to say that an Australian citizen can just have the option of departing offshore to maintain family unity without saying anything about whether it is in the best interest of that child to not be able to live in Australia with her family but instead to face a forced migration outcome with a family who is, at least claiming to be, stateless Faili Kurds, that is not enough.
This is a five‑year‑old Australian citizen girl whose family are at risk of deportation and detention. Is it in the best interest of a five‑year‑old Australian citizen girl to have her family detained or deported? There is no consideration of that, and it is missing from the language. A thematic proposition is, rather than reading into the language perfecting the reasons, your Honour ought find that whilst the consideration was adverted to the necessary evaluation was not undertaken.
HER HONOUR: Does that leave ground 4?
MS COSTELLO: I think I have ‑ ‑ ‑
HER HONOUR: We are all done on ground 4?
MS COSTELLO: Yes, I have covered ground 4. Your Honour is familiar with DUA and CHK, I know, so there is nothing more I need to say about that.
HER HONOUR: Thank you very much, Ms Costello. Mr Hill.
MR HILL: Can I check that your Honour can hear me all right?
HER HONOUR: Would you mind speaking up just a bit. This court room is a long way away between Bench and Bar table.
MR HILL: I will do my best. Is that better?
HER HONOUR: Perfect, thank you.
MR HILL: Thank you. Would it assist the Court if I started with ground 2? What your Honour would have seen in our submissions, we had a construction issue – it is dealt with in our submissions at paragraph 14 – as to whether the reference in section 120(1)(d), which refers to information that was not disclosed to the holder. We had a statutory construction issue as, is that referring to actual receipt, and your Honour will see that we say it does not refer to actual receipt because of the main point that I am going to deal with, which is the permissible form of notification of a consideration of cancellation and section 119.
Just to identify the principal issue that I will
concentrate on for this ground, we submit that for the purposes of
section 119(2),
it says notification is to be given in the prescribed way
or, if nothing is prescribed, in the manner the Minister considers appropriate.
My learned friend accepts, as she must:
prescribed, means prescribed by the regulations.
I did not hear anything, and we deal with this in our response starting
at paragraph 15, as a matter of construction, what one sees
in the
contemporary version of regulation 2.55 is it applies to giving a notice
under section 119 because regulation 2.55 said it
applied to
“giving of documents relating to proposed cancellation”, and then a
“document includes” “an
invitation” or
“notice”.
Certainly, as a matter of construction, one starts with section 119(2) refers to giving notice in a prescribed way. There is a regulation which in its terms applies to giving notice of a prescribed cancellation, and we confirm this. In our submissions, we refer to a High Court case of Wei [2015] HCA 51; (2015) 257 CLR 22, and it is at paragraph 14 – I am not sure if your Honour has brought any authorities to Court, we have not made ‑ ‑ ‑
HER HONOUR: I have them all, thank you.
MR HILL: In that case, just because it is
so important, could I take your Honour to paragraph 14. This is in
the joint judgment of Justices
Gageler and Keane. The sentence we rely on
is in the middle of that paragraph, paragraph 14. Your Honour can see
from the start
of that paragraph, it is talking about notification under
section 119 of the Act, and then about halfway through the paragraph
their
Honours say:
The visa holder is to be notified in one of the ways prescribed by regulation –
Footnote 26 is referring to section 119(2):
which include notifying the holder in a document sent to the holder’s residential address –
et cetera. Footnote 27 is a reference to regulation 2.55.
What we take from this is that their Honours accept the analysis we have
put to your Honour in this case, that when section 119(2) refers to
giving notice in one of the ways prescribed by regulation, that
is a reference
to regulation 2.55. One point that has arisen is a potential conflict with
section 494A of the Act. I am not sure
whether your Honour has
section 494 anywhere
near ‑ ‑ ‑
HER HONOUR: I do, thank you.
MR HILL: What your Honour has put to my learned
friend, and the position we say is correct, is under subsection (1) of that
provision, 494A
– under (1)(b), that provision does not
apply if, sort of converting the negative to a positive, the provision does
state that
the document must be given, (ii):
by a method prescribed for the purposes of giving documents –
Sorry, that is in immigration detention.
HER HONOUR: This is why I think you are directed, are you not, to take into account B.
MR HILL: We would say no. This is 494B?
HER
HONOUR: Section 494A says if you have an Act or regulations
that:
requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods . . . or
(ii) by a method prescribed –
They may give it to the person by any method.
MR HILL: Yes.
HER HONOUR: Your proposition in relation to that is that provision is not engaged.
MR HILL: We certainly say it does not exclude. The case we have referred to, EVE21, if I can just give your Honour the citation. I do not know if your Honour has that in Court, that was not on anyone’s list, it was just cited in our authorities.
HER HONOUR: I think I do have it. Just one moment, please.
MR HILL: Your Honour will see it is reported in [2023] FCAFC 91; 298 FCR 57.
HER HONOUR: Yes, I do have it.
MR HILL: One thing that your Honour will see about that case from paragraph 3 is, importantly, it is a case about notice under section 107 of the Act.
HER HONOUR: Yes.
MR HILL: What your Honour can see, if I can ask your Honour just to briefly glance at 107, unlike section 119(2), section 107 does not refer to giving notice in the prescribed way. In my submission, what there actually is, is perhaps a slight textual tension, at most, between section 119(2), which says you must give notice in a “prescribed way”, and section 494A, saying here is the circumstances in which you may give notice under this provision 494A.
In my submission, when there is an express provision in 119 saying notice must be given in “the prescribed way”, that prevails over the general provision in 494A. Even if that is not right, the point made in this case, EVE21 – and this is at paragraph 35 – is his Honour Justice Perram says 494 is facultative because it confers a discretion the Minister “may” use some of these methods. That is why his Honour held that there was no necessary inconsistency in using the method in regulation 2.55. Your Honour sees that.
What your Honour was taken to was paragraph 48, and my learned friend says there was a potential for a conflict between 2.55 and section 494A, but that is in a different point. In their application to section 107 of the Act, which does not say that notice is to be given in a prescribed way, could regulation 2.55 go so far as to exclude 494A? That is the point his Honour is make in paragraph 48.
We would say the textual resolution of that issue is different in the context of section 119 because it does refer to giving notice in a prescribed way, which is why I have submitted to your Honour the regulation in fact. It is not a case of the regulation triumphing over the Act, it as a case of section 119, the specific provision, prevailing over the more general provision, section 494A.
HER HONOUR: Are there any authorities that have considered 494A in the context of 119? It must have risen before.
MR HILL: Your Honour, the short answer is I do not know. I got to EVE21 and I thought that provides a sufficient answer because, at the very least, the one thing 494A does not do is exclude the operation of regulation 2.55, and here regulation 2.55 was the method relied on. So, my submission to your Honour is that if regulation 2.55 is at least a permissible method of notification then certain consequences follow. Certainly, there is no – my learned friend’s submission that the Minister was required to go on and consider what was appropriate, we say, is not correct.
HER HONOUR: I must say, for me, one of the ways I had read it, and it is apparent that I may have it wrong, is that ‑ ‑ ‑
MR HILL: This is section 119, your Honour?
HER HONOUR: No, 494A
and 494B. They must be read together because that tells you it is so. It
says:
(1) If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person –
That is us, and:
(b) the provision does not state –
This is the negative:
the document must be given:
(i) by one of the methods specific in section 494B –
And it does not, or:
(ii) by a method prescribed –
Irrelevant, because we are not in immigration detention:
the Minister may give the document to the person by any method that he or she considers appropriate –
And your argument is, as I understand it, that that is facultative, and
that somehow, 119(2), regulation 2.55 is more specific and
it should take
precedence over the flexibility of the appropriate method.
MR
HILL: What I say, if your Honour could go back to
section 119(2). Just to remind your Honour, the command there is to
give that particular
notice:
The holder is to be notified in the prescribed way –
HER HONOUR: I know. What I am asking you, is that not covered
by 494A(1)(a)? I think your answer is it requires it to be given to a person,
but it does not prescribe the way in which it is going to be given. There is a
distinction between the requirement to give a notice
and the requirement to give
a notice in a particular way. I think, if that is right, then it may very well
be that the better view
is, and I do not know – in effect, it is like
a Venn diagram. These, in effect, provisions do not actually overlap because,
as I understand your argument, 119(2) not only requires the Minister to give a
document to a person, it goes one step further.
MR HILL: Yes, exactly.
HER HONOUR: It tells you it must be given in a particular way. In a sense, 494A is not engaged, arguably, because it is not addressing a situation where not only is there a requirement to give a notice but you have to do it in a particular way.
MR HILL: I embrace that, your Honour, in this sense: I had been thinking the literal words of section 494A(1)(a) would apply to this case, but what your Honour puts to me, I think, is would it not be a more purposive construction of the Act to say the purpose of this provision 494A is to deal with the situation where there is this requirement to notify, but nothing is said in the provision about how to notify, and this provision 494A, fills in that gap that there is no need for this provision to operate on a provision like section 119(2), where it both imposes the obligation to notify and specifies how the notice is to be given.
HER HONOUR: Yes.
MR HILL: I do make that submission, your Honour.
HER HONOUR: Is there any authority on that?
MR HILL: I have not found any, I am afraid. I am sorry, your Honour.
HER HONOUR: Other than EVE21, have any other authorities considered these provisions?
MR HILL: I could not answer that. I had stopped at the point of there being no conflict between regulation 2.55 and section 494A. I now see that I should have gone further. I apologise, I cannot answer your Honour’s question.
HER HONOUR: I think that both from you and I will give Ms Costello an opportunity, as well, I would be grateful if you could look to see whether there are two things: further authorities; secondly, the way in which I have put to you, the way in which 494A sits outside of or alongside of, parallel to, provisions like 119.
MR HILL: Thank you, your Honour. Perhaps at the end of the hearing, we might engage in the mechanics and housework as to how long and who and ‑ ‑ ‑
HER HONOUR: You can have a conversation with Ms Costello and then let me know. As long as it is not too far away so I do not actually forget, that would be helpful.
MR HILL: Yes, your Honour. I understand. In this context, just to remind your Honour, I pointed out to your Honour that EVE21 was about a different notice provision, section 107, which did engage 494A because it required a notice to be given but did not say anything about how. In my submission ‑ ‑ ‑
HER HONOUR: Yes. That was what prompted me to put the proposition to you.
MR
HILL: Thank you, your Honour. Your Honour might remember that
in the policy guideline that my learned friend to you to there was a rather
broad statement – this is in the bundle of authorities at tab 7,
and it was at numbered page 116 of that bundle, using the
red numbers at
the bottom of the page. Your Honour will remember there is:
The Act does not prescribe a method by which the NOICC is to be given.
First, we mention that the next sentence,
well ‑ ‑ ‑
HER HONOUR: Sorry, did you say 116?
MR HILL: If one uses the red numbers it is 116, but if one is actually looking at the PDF number I think it might be 118.
HER HONOUR: I was taken to page 118, which
was:
Method of giving notice of cancellation –
Is that what you were referring to, or are you referring to something
else?
MR HILL: I am referring to – if we are both at
the:
Method of giving a NOICC ‑ ‑ ‑
HER HONOUR: Yes, I have that now, thank you.
MR HILL: At least on my version of that, if one looks at the bottom of that page there is a red number ‑ ‑ ‑
HER HONOUR: Yes, I agree.
MR HILL: Yes. All I wanted to do
was try to explain, first, it is a policy – a non‑binding
policy – and the reason for
that rather broad statement is because of
the inconsistency in the old version of the Act some provisions, like 119,
would say give
the notice by a prescribed method, other provisions,
like 107, would not say anything about it. So, understood in that way,
that
is an accurate statement if the Act does not generally or
comprehensively:
prescribe a method by which the NOICC is to be given.
because notices are given under a number of different provisions which
used to be in very inconsistent form. We submit, understood
in that way, there
is no conflict between the policy and the submission I am putting to
your Honour. Your Honour might remember,
when my learned friend
took ‑ ‑ ‑
HER HONOUR: The first sentence is wrong, is it not?
MR HILL: It is only correct if one reinterprets in the way I have put to your Honour. Otherwise, yes, I submit it is wrong, and it is a statement of policy, so it cannot control what the Act means. Just to make some short submissions about the amendments in 2023, your Honour put to my learned friend, how can later amendments influence the interpretation of an earlier version of the Act, and there is that obscure statement of Justice Dixon, in the case that I cannot remember, about how that is sometimes permissible, but it is definitely not this situation, we say.
If your Honour accepts our analysis of what the position was when the notice was given, it is true the Act was unsatisfactory in that there was a number of different provisions making slightly different provision for serving notices, but in no sense did the 2023 amendments change the position for notifications under section 119; it was a genuine clarification of the position. If I could move on to the next point, unless your Honour had any questions.
One aspect of this argument which is difficult is can it be said that the second and third plaintiffs are somehow included in the visa granted to the first plaintiff? As I understood where we have got to, it is accepted that there are different visas, there is not a single visa, and we would embrace the reasoning in that case your Honour referred to, which is BJK17 (2019) FCAFC 171, at paragraph 57. The fact that there is a single decision record, we would say the fact that they are combined applications does not mean there is a single visa or that a family member’s visa is included in the grant. I regret that I had not thought of this provision before, but does your Honour have a copy of the whole Act?
HER HONOUR: I can get it.
MR HILL: Because what I – and I regret that it has only now occurred to me to take your Honour to it, is section 83 of the 2019 version of the Act.
HER HONOUR: Can you give me that provision again, please, Mr Hill.
MR HILL: Section 83.
HER HONOUR: Yes.
MR HILL: Does your Honour see how it
says:
Certain persons taken to be included in spouse, de facto partner or parent’s visa –
HER HONOUR: Yes.
MR HILL: We would say that is a
clear example of the Act expressly contemplating that in certain situations the
person is taken to be included
in any visa granted, but it requires that level
of specificity. Your Honour will see the situations in which it
applies:
(a) a person’s name is included in the passport or other document of identity of the person’s spouse or de facto partner; and
(b) the person accompanies his or her spouse or de facto partner to Australia –
The Act has, in those two subsections, specific situations in which a
person is taken to be included, thus giving those words in the
definition of
“holder” some work to do. Without taking your Honour to
it ‑ ‑ ‑
HER HONOUR: Is that the kind of provision to which section 139 is dealing?
MR
HILL: Yes, exactly. It is also the kind of provision to which that tail
end of the definition of “holder” of a visa, when
it talks
about:
holder, in relation to a visa, means . . . the person to whom it was granted or a person included in it.
Section 83 has a specific situation where a person is taken to be
included in the grant of a visa.
HER HONOUR: Are there any other provisions like 83? Any others?
MR HILL: What I have seen,
your Honour, is in section 29(4) there is provision for:
the regulations may provide for a visa being held by 2 or more persons.
And as far as I am aware, certainly with my instructor, and both me and
my junior counsel have looked, we certainly have not seen
any visa class in the
current version of the regulations that
made ‑ ‑ ‑
HER HONOUR: Thank you. It is 29 (4), was it?
MR HILL: Section 29(4). That bundle I was going to hand up to your Honour was the old version of the Act, but I now realise the provisions I was going to take your Honour to are the precursors to current section 83 of the Act, so I do not need to burden your Honour with any more paper than you already ‑ ‑ ‑
HER HONOUR: Just so I am clear, when was 83 inserted in that form?
MR HILL: As I have just gone through the notations to the Act to see if it has been amended and there is no reference to it being amended, I infer from that it has bene in this form since the 1992 and 1994 reforms of the Act.
HER HONOUR: Thank you.
MR HILL: If it would assist your Honour to know the old version of the Act and to see how these provisions that I have just taken your Honour to had their predecessors, I am happy to take your Honour to it, but I do not think it adds anything than just seeing there is a specific provision of the Act referring to people being included in a class of visa.
HER HONOUR: Is the proposition that 83 has been in that form at least since 1992 or 1994?
MR HILL: Yes.
HER HONOUR: And that the provisions that predated it, is that the one you are going to take me to?
MR HILL: Yes. In similar form ‑ ‑ ‑
HER HONOUR: Were in similar form to the same effect. So, it is not a new concept.
MR HILL: It is not a new concept, and certainly we emphasise the point that your Honour put to my learned friend in argument, which is section 36(2) has distinct criterion for the grant of a protection visa.
HER HONOUR: Subsection (2)(a) versus (2)(b)(i) and (ii).
MR HILL: Yes, exactly. So, we say, given the distinct criterion, when one sees a reference to “included” we would say it stretches the use of that term to say it includes a family member who meets a related but different criterion.
HER HONOUR: I think that it would be useful just for completeness if I could see the earlier provisions, and you should give a copy – has Ms Costello been given a copy of this?
MR HILL: Yes.
HER HONOUR: Thank you.
MR HILL: My learned junior actually corrects me.
Section 83 has been amended to make reference to “de facto”,
but the idea
of – starting with these provisions, this is an
old‑fashioned paper reprint from 1985 that your Honour can see.
Turning
the pages, for no reason at all I included the definition of
“visa” on numbered page 5, which is:
a visa in force under section 11A.
But over the next page, this is section 5(6), there is the precursor
to the:
reference to the holder of a visa or return endorsement shall be read as a reference to the person to whom the visa or return endorsement was granted and as included a reference to any other person whose name is included in that visa –
Then turning the page again, 11A(4), there is the provision that
your Honour will see is very similar to what is now in section 83.
Turning the page again to section 11C, this is talking about:
Carriage of persons to Australia without documentation –
If I could ask your Honour to turn to the last page, which is
subsection (6) of that provision, and you will see again a specific
provision made when:
two or more persons who are the holders of the same visa –
And they are both taken:
to be in possession of that visa or return endorsement.
HER HONOUR: It is put against you that, in the notification that
was given to the first plaintiff, that language of “includes”
was
used, and that one is to seek to draw some view about the way in which those
visas were treated for these purposes. What do
you say about that?
MR HILL: We say that the nature of the letter is to describe in a practical way the operation of what has been given, and certainly in a practical sense when you are a family member of a persons who has been granted a protection visa and you take a protection visa by reference of your family connection, in some sort of practical sense it could be said you are included in. So, this is document to inform the holder of a visa what their position is. We say that reference of “included in” is inaccurate and certainly cannot take priority over the legal building blocks of the position, which then, we say, are supported by the evidence of the Department’s records as to how they record ‑ ‑ ‑
HER HONOUR: At pages 32 to 34.
MR HILL: Yes, exactly.
HER HONOUR: Thank you.
MR HILL: That is important
because – just remembering we are dealing with
ground 2 – what we say is that, coming back to section
119,
in subsection (1) of 119, this section operates:
if the Minister is considering cancelling a visa –
And we say that this reference to “considering cancelling a
visa” contemplates a decision‑making process, and we
say there is
such a decision‑making process in deciding whether to cancel the visa of
the first plaintiff, but to go from section
119(1) then to
section 140, we say the effect of section 140(1) is that when certain
preconditions are met – which is the cancellation
of, here, the first
plaintiff’s visa – the end of section 140(1) says:
a visa held by another person because of being a member of the family . . . is also cancelled.
That is, it is cancelled by operation of law, and so we say there is no
decision‑making process involved. The statute itself
provides for
cancellation. Therefore, recalling the language of section 119, it
applies:
if the Minister is considering cancelling a visa –
The cancellation of the family members’ visas under
section 140 operates by force of law without any consideration, which is
why we say there is no need to notify the second and third plaintiffs
independently because the preconditions for section 119 were
never engaged
in respect of them.
Just dealing with a construction point raised by my
learned friend about subsection (2), we would draw your Honour’s
attention
to the fact that subsection (1) is, we submit, an automatic
cancellation that operates by force of law. By contrast, subsection
(2)
confers a discretionary power in the minister:
the Minister may . . . cancel the other person’s visa.
We submit that difference between automatic cancellation and a
discretionary power to cancel is why it is necessary in subsection
(2) to
make specific reference to that power arising without notice, whereas there is
no need for those words to appear in subsection
(1).
This argument
is supported by a decision of her Honour Justice Button in a case that
we have cited in our submissions called BWS22 [2024] FCA 387,
and I am not sure if your Honour has a copy of that case with you in Court,
but if I could take your Honour briefly to that. I
should acknowledge, as
I understand it, special leave has been sought from her Honour’s
judgment. The paragraphs that I wish
to draw your Honour’s
particular attention to are paragraphs 73 and 76 of that judgment. In
paragraph 73 her Honour says:
s 140(2) differs from s 140(1), as it confers a discretion . . . whereas cancellation under s 140(1) is automatic. That explains why s 140(2) explicitly excludes a requirement to notify a person –
Then her Honour continues that
cancellation under subsection (1):
is automatic; there is no discretion to exercise and no decision to make –
And that idea that there is no decision, but the cancellation occurs by
operation of 140 of the Act itself, is repeated in paragraph
76. That
is why we say, as far as the second and third plaintiffs are concerned, the
preconditions for section 119(1), which is
consideration of whether to
cancel a visa, do not arise. Unless there are any questions on ground 2,
could I go to the other grounds,
which I hope I can brief on?
HER HONOUR: Sorry, can you speak up a bit. I just missed what you said, Mr Hill.
MR HILL: I was proposing to move to the other grounds, starting with ground 3.
HER HONOUR: Yes, thank you.
MR HILL: This is a ground about illogicality, and my learned friend says the main thrust of this argument is giving any weight or making a finding that the first plaintiff had refused to receive the notice. We have dealt with this in paragraph 19 of our response. It appears from what your Honour put to my learned friend, your Honour understands there is a document in evidence which shows a letter addressed to the first plaintiff, and the Australia Post marking is “refused” and not unknown or return to sender.
We say, certainly, if there was any other information pointing in another direction, perhaps you would not say it is the very strongest form of evidence, but that is not the question. On the information available to the decision‑maker assessing reasonableness at that time, was there a probative basis for the decision‑maker to consider the notice had been refused when it is addressed to the first plaintiff, sent to the last known address of the plaintiff that had been used in his citizenship application in 2015, in an AAT application in 2016, and when the evidence is the plaintiffs had not notified the department that they had moved? We say there is, recalling the high standard of illogicality as a ground of review. The only other point I wish to say anything more about is about the relevance of the best interests of the children.
HER HONOUR: Have you finished with notification issues?
MR HILL: Actually, there is ground 4, as well. Would it assist your Honour ‑ ‑ ‑
HER HONOUR: I do not mind when you do it, but I do ‑ ‑ ‑
MR HILL: I think I will be coming back to it and the idea of was it unreasonable to fail to make further inquiries. I will be saying something more about that.
HER HONOUR: Thank you.
MR HILL: It was more, under ground 3 there was this specific reference to the finding that the first plaintiff had refused the notice that I was responding to there.
HER HONOUR: I see, I understand that you responded to that. I interrupted. What else are we doing with in relation to ground 3?
MR HILL: In relation to ground 3, the only thing which I want – we have gone through all of their particulars in our response, particularly paragraphs 26, 27 and 28, but could I just say something briefly about the best interest of the child. We have said most of this detail in answer to ground 1, taking your Honour to the various bits of the decision where the best interests of the child are averted to, and I do not need to repeat that.
HER HONOUR: It does not get any higher, does it?
MR HILL: I would submit it is not a bare reference without any consideration. In my submission, the proper construction of those paragraphs that your Honour has identified for my learned friend is the decision‑maker considered that the most important thing for the best interest of the children was family unity and, in my submission, that is a view open to the delegate. There is only one more submission that I wish to make about the best interest of the child, which is to consider the source of any obligation to consider it.
It is certainly a matter that was considered, it is certainly a matter that was contained in a policy, but my submission to your Honour is that the particular policy was not one of those ministerial directions issued under 499 which a decision‑maker must have regard to. This is a policy in the true sense of a non‑binding document. We remind your Honour of paragraph 29 in Plaintiff M1, where the Court said an unenacted international obligation is not a mandatory relevant consideration. Let it be assumed against us that there was insufficient consideration of the best interest of the child, we would say, in the context where there is no binding obligation to consider it, that cannot amount to jurisdictional error. That is a further submission that is not in our written submissions.
HER HONOUR: Ms Costello put them as mandatory considerations in her submissions.
MR HILL: Whatever they are, they are definitely not mandatory considerations. They are considerations in a policy. You might, in some circumstances, be able to say a decision‑maker who purports to apply a policy and then completely misunderstands it as not done the thing they thought they were doing, but we would say nothing about this or any of the other errors alleged could amount to a misunderstanding of a policy in that sense, so as to amount to unreasonableness.
I understood my learned friend, on the best interest of the child, squarely to say that it is an insufficient consideration of that consideration that is said to be the error. We would say, even when there is a requirement to take into account representations by a person, the Court, even in that context, says care has to be taken that we are not conflating a requirement to consider into a review of whether it was considered well enough ‑ ‑ ‑
HER HONOUR: Merits review.
MR HILL: Yes, exactly.
HER HONOUR: So, there were five consequences identified in relation to ground 1, and it is your submission that none of those are mandatory considerations?
MR HILL: I will go to ground 1, and I welcome the opportunity to clarify submissions. There are five consequences, and we would say, certainly, it is necessary to consider the mandatory legal consequences. I apologise, I have my head down because – if I could just clarify what we say has to be considered. There is a case that we have cited in our response at footnote 10, I do not know if your Honour has it – the response, that is – it is BNGP [2023] FCAFC 111; (2023) 298 FCR 609. Your Honour, it is not in our list of authorities, so your Honour may not have the case in Court.
HER HONOUR: Did you say footnote 10?
MR HILL: I did say footnote 10. I said it, whether it was right when I said it. Did your Honour see in footnote 10, this is on page 4, we cite NBMZ and then BNGP.
HER HONOUR: I do not have that case.
MR
HILL: If I could just give your Honour a reference, we refer to the
joint judgment of Justices Bromwich and Kennett, but the leading
judge was
actually the judgement of Justice Perry. At paragraph 101 of that
case, her Honour draws a distinction between the inevitable
legal
consequences of a decision and consequences that are merely probable or
arguable, and so you have to consider the inevitable
legal consequences of your
decision, but you are not required to consider:
a consequence that is merely probably or arguable.
The only reason I say that, your Honour, is your Honour would
have seen in writing we say the consequences for the fourth plaintiff,
who is an
Australian citizen who is not subject to removal – these are all
practical consequences that need to be worked out
among the family. Given three
of them are liable for removal, what will they do with their
five‑year‑old daughter?
Of course, one imagines they will all leave or stay together, but it is a matter for them. The parents are her legal guardians. Just to take a purely hypothetical case about a different family, there could well be families where there are family members in Australia – other family members – and some parents might say, I would rather my child stay in Australia with family members while we work to get ourselves back to Australia.
HER HONOUR: Does that mean that 3 and 5, being the fourth plaintiff ones, fall into that category?
MR HILL: Yes, that is my submission.
HER HONOUR: And then the other ones, 1, 2 and 4.
MR HILL: They are, we accept, legitimate legal consequences that follow directly from ‑ ‑ ‑
HER HONOUR: Which are required to be considered.
MR HILL: Yes, and we say they are considered.
HER HONOUR: And then they are considered, was your argument.
MR HILL: Yes, that is right. We have gone through that in some detail in writing, and if I could ask your Honour to go back to our response, what your Honour will see, in paragraph 4 and the cases cited in footnotes 1, 2 and 3, is just to reject any argument that, unless your Honour can see it said expressly, it has not been considered. We say the question of whether something has been considered is a matter of substance, not merely of form. Your Honour reads the reasons as a whole, fairly, at the same time.
My learned friend submitted, and I cannot argue against this, it is not your Honour’s role to perfect the reasons if things have not been considered. If that’s your Honour’s conclusion then that is the end of the matter, but we do resist any suggestion that appeared at points that your Honour should find something that was not considered because it was not expressly said so. Without repeating the detail of what is in our submissions, can I give your Honour just one example where we say your Honour can comfortably consider that a matter has been considered by reading the reasons as a whole.
HER HONOUR: Which one are you taking, 1, 2 or 4?
MR HILL: I am thinking of the potential for the third plaintiff, the son, being removed from Australia. I am not sure that is 1, whichever one that is.
HER HONOUR: Consequence 1 is they are subject to immigration detention and indefinite detention. The next one is removal under ‑ ‑ ‑
MR HILL: It is removal, is it that one. If I could take your Honour back to the decision record, the key pages, as your Honour has seen, start at page 19 – if one looks at the numbers at the top of the page – but my submission is the delegate has expressly acknowledged that the third plaintiff, the son, is facing removal from Australia at least at two points. One is at the bottom of that page, page 19.
HER HONOUR: I think the complaint is, as I read the particular, is that the second and third plaintiffs may be removed.
MR HILL: Yes, exactly. At the bottom of page 19, that is a reference to the visa holder’s son is the third plaintiff. If one was arguing, has the delegate turned their mind to the possibility of the third plaintiff being removed, this is just to give the clearest example of something that is considered because it is referred in terms the possibility of him being removed.
HER HONOUR: I think you accept, at least in writing, to some of those critical particulars that there was no direct reference.
MR HILL: No. What we do say is that, turning to the next page ‑ ‑ ‑
HER HONOUR: I do not think it is helpful to take your best point. You might want to take your worst point. There are some of them which are not adverted to. As I understand your submission, one has to take the cancellation decision as a whole and read it as a whole.
MR HILL: Yes, and so what we say, moving
to – who knows if it is our worst point, it is certainly not as
strong as a point I just
started with – numbered page 20, what
we say is – your Honour sees as a heading:
Any consequential cancellations –
And the delegate says:
If the visa holder’s Protection visa is cancelled, his wife and son would be liable for consequential cancellation –
The very next paragraph is the consequences of cancellation. It is true,
only in terms of the first plaintiff, but we would submit
when the delegate has
clearly identified the consequences of cancellation of a visa –
admittedly, only the first plaintiff’s
– when one of those
consequences is removal and that removal is referred to specifically for the
third plaintiff, we would
say it can be inferred that the delegate is
well‑aware of what the consequences of cancellation will be for the second
and
third plaintiff even thought it is not said so expressly.
It is one of those matters that one looks at the reasons as a whole and then determines whether your Honour is satisfied that matters have been considered in substance or have not. Unless your Honour has any questions about ground 1, I might conclude with some short submissions on ground 4.
HER HONOUR: Yes, please.
MR HILL: Ground 4 is the failure to take further steps. What your Honour will see is that in paragraph ‑ ‑ ‑
HER HONOUR: There are three factual issues, I think.
MR HILL: Yes, your Honour.
HER HONOUR: One is what I will call the telephone number facts. Calling a number, which I do not know where that number comes from, followed by calling the second plaintiff’s number before and after the notice is issued. The third, which provides additional context, is the number which is recorded in the AAT material, which the Minister is taken to have in front of him, and I assume the delegate has, as well. Finally, to the extent that it is relevant, is – I do not know what this means in your submission where you say it is not as straightforward as the plaintiffs say to transfer information in relation to Medicare, et cetera, because of privacy restrictions.
MR HILL: Yes.
HER HONOUR: I did not understand that. There is that and then there is the question about what further steps might have been taken.
MR HILL: Yes. Starting with the Medicare, our short submission is when one looks at the particular provisions ‑ ‑ ‑
HER HONOUR: When you say “particular provisions” what are you referring to?
MR HILL: The provisions that are cited in footnote 32 of our response, which is talking about the Social Security (Administration) Act, Health Insurance Act and the National Health Act. These are the provisions which restrict the disclosure of information, and it is necessary to consider each provision, which I have – and I now forget which one is which.
Certainly, I thought there was a provision, which you would say, well, clearly if the Department of Immigration calls and says, do you have any information about this person, there is clear statutory authority for them to say, yes, I do and here it is. Under the other provisions, it is much, much more debatable. All I am saying is that it is necessary – it is not as straightforward as to say, because one government department holds information the Department of Immigration can just call them up and ask for it.
HER HONOUR: But it was an avenue available.
MR HILL: It is an avenue available. Our argument on that, as your Honour would have seen, is to say reasonableness is assessed at the time of the information available to the decision‑maker at the time. What we have submitted is, of course, now we know that two government agencies did have information, but the plaintiffs did not provide that information to the Department, to put it as neutrally as I can.
HER HONOUR: That is right, but I think it is important not to chop this up and say, I can answer all this. The facts are these: the first call is made – I do not know where that number comes from.
MR HILL: Can I answer your Honour on that? Would that help?
HER HONOUR: Yes.
MR HILL: That comes from the first plaintiff’s citizenship application, and that is in the first Stone affidavit. The first Stone affidavit, at page 7, has a phone number ending in “445”. What I am hoping is that when I go to that document in the Milton affidavit that we have been looking at, your Honour will see – yes, does your Honour see – comparing that with a number at page 22 of the Milton affidavit, your Honour can see that is the same number. That is where they have got that number from. It was a number provided by the first plaintiff in his citizenship application in 2015.
HER HONOUR: Right.
MR HILL: At least the Department is not making things up. What it has not done, it has not updated its information when it received documents in AAT applications, so, of course, we have to accept that the other mobile phone number for the first plaintiff, ending in “789”, was contained in documents provided in the AAT review proceedings.
HER HONOUR: I am going to be really direct. The only place they got that number from was from the AAT documents.
MR HILL: I am sorry, who is the “they” in the ‑ ‑ ‑
HER HONOUR: The delegate, or the people making the calls.
MR HILL: I do not accept that. The delegate could get – and in my submission did get – the information they used from the citizenship applications. They get both the number for the husband from that document I have just taken your Honour to – in the same affidavit, what your Honour sees is the second plaintiff’s citizenship application is at exhibit 7.
HER HONOUR: What page number is it?
MR HILL: Page 87. Then your Honour will see at page 88 of that ‑ ‑ ‑
HER HONOUR: Just one moment, please. Yes.
MR HILL: At page 88, your Honour sees a mobile phone number.
HER HONOUR: Yes.
MR HILL: What your Honour can see is that mobile phone number is the same as the mobile number that is at page 22 of the Milton affidavit.
HER HONOUR: Why would the AAT material not be before them?
MR HILL: What I submit to your Honour is that, certainly, there is within the corpus of the Department’s knowledge there are these AAT documents. It may be ‑ ‑ ‑
HER HONOUR: It is a bit more, is it not? That they are the very AAT documents that relate to these citizenship applications.
MR HILL: Of course, I do accept that. One gets an idea from the second plaintiff’s affidavit. At paragraph 22 of the second plaintiff’s affidavit, which is at page 4.
HER HONOUR: Just one moment, please. That is them. I am not talking about the plaintiffs, I am talking – paragraph 22 is dealing with their updating, I am talking about ‑ ‑ ‑
MR HILL: Yes, the second half where the Department says you cannot update the address over the phone, you have to complete a change of contact form. It is that, and I wanted ‑ ‑ ‑
HER HONOUR: I accept that, but I am asking about the Department. They have taken two phone numbers off a citizenship application and not looked at the AAT records, which must have been in the same file.
MR HILL: I could not comment on that, but I ‑ ‑ ‑
HER HONOUR: It would just be very strange if it was not all together in the one spot.
MR HILL: This is my submission to your Honour. That paragraph I have just taken you to in the affidavit suggests, in my submission, the Department requires a certain formality in updating contact details, and in my submission, that is entirely appropriate for the Department not to chase its tail and to assume that the latest mobile phone number given to it is what it should use from now on, but to require people to notify it formally of the numbers that it should use.
HER HONOUR: I accept that. The question here is, though – and this is about the context in which these facts arise – someone is considering cancelling the visa. What the record shows is that, prior to the cancellation of the visa, someone was trying to get into contact with the first plaintiff and then the second plaintiff.
MR HILL: Yes.
HER HONOUR: They rang a number, which, as you showed me, is on the application for citizenship, and it was disconnected. They then ring the second plaintiff, whose number was also on her citizenship application, and left messages, but no one took the step of saying, hang on a minute, there are some AAT proceedings over here, there may be another telephone number to look for.
MR HILL: Yes. No one took that step, I accept that. My submission is this: to say that a further step could have been taken does not demonstrate that it is unreasonable not to take that step.
HER HONOUR: That is a submission which I am sure even Ms Costello accepts. The question is why is it not unreasonable, given the disconnection of the phone, not to look at the later records which are, you describe, within the ‑ ‑ ‑
MR HILL: I think I used the word “corpus”. I got a bit excited, your Honour.
HER HONOUR: Well, I am going to quote you back – of the Department which would have had a number?
MR HILL: In my submission, it is necessary to take account of all the circumstances. Two relevant circumstances are the Department called a number which is the first plaintiff’s wife’s number. If they had left it at, we have tried someone, there is no phone number, how awful, we will leave it there, they have a number that does go through and, in my submission, given they have a number that works for the person’s spouse, it is not unreasonable not to take every possible step. If they did not have the wife’s number, then the argument for unreasonableness would be much stronger to say you have sort of hit a brick wall and stopped.
A second relevant part of the circumstances is, by the time of the cancellation, the information before the Department is that the notice was not just – there was no evidence before the Department that the notice had not been received. The evidence was it had been refused. In my submission, that is also highly relevant to what is reasonable if you make phone calls to a person’s spouse who does not return them, and if the marking from the Australian Post is that the notice is refused, that informs what steps are reasonable to take before making the final cancellation decision.
The only last point I would make – and this is merely to point out that unreasonableness takes account of the statutory context and to observe that, certainly as far as giving the notice goes – is the way of giving notice contemplates that a person may not receive it. Your Honour would see this in regulation 2.55(7); if you send a notice by registered post, a person is taken to have received it. We would say that is part of the context in which there is no statutory obligation to take every possible step to notify a person. I repeat the points I have just made, there is a number for the wife, and the evidence before the Department is the initial notice was refused rather than went astray.
Unless your Honour has any further – actually, I should ask my team. My learned junior has done me the misfortune of referring to a case that I lost before Justice Mortimer as an answer to your Honour’s question, so I am hoping I can – rather than to attempt to answer your Honour’s question about the interaction of 494A and the regulations on the run, I think it might assist the Court more if I talk with my learned friend and we were to engage in more ‑ ‑ ‑
HER HONOUR: I think it would be helpful.
MR HILL: It would be ideal if we could even reach a joint position.
HER HONOUR: It might be. Even that might be nice.
MR HILL: If all we are doing is saying what the case law is ‑ ‑ ‑
HER HONOUR: I
think it would be useful because what is the case law? Especially in the courts
that deal with this every day. Is there any?
Secondly, I would be grateful
if both of you could consider the construction I put to you in relation to
494A.
MR HILL: Yes.
HER HONOUR: You do not have to do it now, Mr Hill, or Ms Costello.
MR HILL: I certainly embrace your Honour’s construction; the idea that those two provisions do not intersect as a matter of Venn diagrams, and I am sure my learned friend would disagree on that, but I am sure we could ‑ ‑ ‑
HER HONOUR: I think it would be useful to give you some time to think about it and to provide proper submissions on it.
MR HILL: I am grateful to your Honour. Unless your Honour has any other questions, those are the Minister’s submissions.
HER HONOUR: Thank you, Mr Hill. Ms Costello in reply.
MS COSTELLO: Just a couple of things, your Honour. First of all, to be clear about how the arguments have put, in terms of which ones are mandatory considerations, the consequences ‑ ‑ ‑
HER HONOUR: This is for ground 1?
MS COSTELLO: Yes. The consequences of cancellation within the framework of the Act are mandatory legal consequences, and those three provisions of the Act: 46A, 189, 198.
HER HONOUR: Yes.
MS COSTELLO: The other matters are practical consequences that are not mandatory considerations.
HER HONOUR: So, you agree with Mr Hill in that sense.
MS COSTELLO: Yes, your Honour. The non‑consideration of matters that needed to be considered, for practical reasons and also because they arose under the best interest of the child, should be seen through the prism of whether the decision is erroneous in its weighting or its reasonableness in light of what it is that the decision‑maker is saying that it is doing, and we rely – you can see this in paragraph 47B of our amended application – on the case of Jabbour about where a decision‑maker says, well, I am taking this thing into account, be it the convention on the rights of the child or something from the guideline, but then misfires in the application or evaluation of the very thing that the decision‑maker says they are applying.
Just to
pick up on the issue around what “visa” and “holder”
mean, one aspect of the definitions in the Act
at the relevant time is the
meaning of “visa”, and the meaning of “visa” is said to
have “the meaning
given by section 29”. Section 29
defines a visa to be in this way, it says:
Subject to this Act, the Minister may grant a non‑citizen permission, to be known as a visa, to do either or both of the following:
(a) travel to and enter Australia;
(b) remain in Australia.
So, a visa is permission to do something, and we call permission to
“travel to and enter Australia” or “remain in
Australia”
a visa. Here, there was a grant of that permission to the three family members
to travel to and enter Australia.
The physical evidence of that permission
occurs on those pages 32 to 34, but what is actually granted is more
metaphysical, and
that is permission to do certain things. Plaintiffs one, two
and three were given that permission by the pathway of section 36
criteria.
In reply to the submission from our learned friend on section 83, we submit section 83 does not in its terms cover the field. So, it does not mean that someone who is not in the de facto or spouse visa territory is not included in the visa.
HER HONOUR: No. As I understood the submission, it was a submission to say that the language of “holder” has some statutory basis, and one sees it because it is the same kind of language used in section 83, and it is of long standing, and that is why I have been given the older provisions. As I understood it, I do not think it was a submission which suggested that it covered the field. As I understood the submission, although I have not gone to it, there is also a regulation or a power which says it can also be dealt with by regulation, and then no other kinds of visas as currently to be found which can contain that kind of language. I think that is how I understood it was put.
MS COSTELLO: Yes, your Honour. In the last ground that our learned friend addressed, which is whether it was unreasonable or not to make further enquiries as to how to notify, your Honour had raised some matters. One was that the notice was returned to sender, the other was that the Department had not called on the records from the AAT proceeding, and we respectfully adopt those two matters that are relevant in considering unreasonableness.
We also in fact rely on the fact that what is drawn upon in the evidence before you is information from the citizenship application, which is a 2015 application. The time that you are considering these steps and whether they were reasonable is four years later in 2019, and in between 2015 and 2019, there was an AAT review. So, the failure to make inquiries of documents in the AAT’s review which are before the Department is also unreasonable.
The fifth fact is that the visas had been held since 2011, so, obviously, the address given for that visa – it is quite conceivable that that address would be out of date. If you look at the evidence we have for how the delegate went about deciding on how to notify, you will see, on the same page where the phone numbers called are listed, that there has been a changing of the guard; there is one delegate considering how to notify and then there is another one cancelling the visa. The unreasonableness here in notification affects both stages of the decision‑making, in that there is an unreasonableness in how to notify, then there are phone numbers that follow the first attempted notification.
HER HONOUR: I put that to Mr Hill. I said there was calls made both before and after the notice was sent out.
MS COSTELLO: Yes. So, here when we are talking about unreasonableness in this process, there are phone calls ‑ ‑ ‑
HER HONOUR: Are you saying the same error infects both stages?
MS COSTELLO: Yes, your Honour.
HER HONOUR: Is it any higher than that? I am not seeking to diminish it, but you would say it is the same error; the same error is the same five things you rely on, excluding the return to sender for what I will call the first stage.
MS COSTELLO: Yes, indeed. Just to be, I suppose, precise about the way we put it on the facts, there is an accumulation of problems, in that when the initial delegate sends the notice, at that point, that delegate does not know that it will be returned to sender, but when the delegate is sending the cancellation, having not made the efforts that we say are necessary to have done more notification, that notice of cancellation is given in circumstances where, at the time of deciding to cancel, the delegate has – I am going to call it, descriptively – a return to sender of the NOICC and a non‑inquiry from Medicare or Centrelink, and a non‑inquiry into the AAT citizenship review process.
At the time that the ultimate canceller decides to weigh against the plaintiff non‑participation in the cancellation process, the unreasonableness in trying harder to find out where these people are and how to contact them crosses over with that unreasonableness in weighing against the plaintiff his perceived active, rather than passive, non‑participation of the process.
HER HONOUR: I think this is why I said to you at the outset, if you approach the question of notification and the steps taken as the first question, then, as I understand the way you put it, it is that you have a step taken prior to cancellation, which is the notification of intention to cancel. Steps are taken prior to that notice going out to contact the first and second plaintiff. You say that conduct was unreasonable because they failed to use the information available to them from the AAT review of the citizenship application and instead used old information to obtain two phone numbers on the citizenship application, and that unreasonableness, as I understand the way you put it, is amplified or should be seen in the context of the fact that consideration of sending a notice was in 2019, interrupted by the very event upon which you rely, which was the AAT review in between.
As another contextual matter you rely upon, it is that these plaintiffs – that is, the first, second and third – have held their respective visas since 2011, and that has two aspects to it, as I understand it. First, they have held them for a long period of time. Second, it is likely that they will have shifted from the time at which that visa was granted to them. Have I missed anything in relation to your argument about the period before the notice is sent?
MS COSTELLO: No, your Honour.
HER HONOUR: You then say the notice is sent and it is returned to sender, which has on it a refusal. That is, it was refused. I bring forward, on your argument, in relation to the cancellation decision, the same facts and matters that we have just discussed pre‑ the notice going out but add to it this additional fact.
MS COSTELLO: Yes, your Honour.
HER HONOUR: Have I missed anything?
MS COSTELLO: The only other thing is that, as is apparent from the ground alleging the section 120 breach, part of what the decision‑maker used as grounds for cancellation included material in the Tribunal’s decision on review of the citizenship refusal. So, here you have only use of address and phone number information from the citizenship application for the purposes of notification, but then use of things found by the Tribunal on review in the merits of cancelling the visa. It is clear that the Tribunal process was a matter of which the NOICC sender and the cancellation decision‑maker were aware.
HER HONOUR: I do not know that that inference in relation to the NOICC sender is right, is it? I just do not know. At the moment, if that is the inference you want me to draw then you should put that inference as a submission, I think, because I do not know if that that has been put in those blunt terms. You need to tell me what the facts are that give rise to that inference, and that I should draw it.
I accept, I think, that if one goes to the cancellation decision which is attached to the second plaintiff’s affidavit, one has reference to the Tribunal and what the Tribunal did, both as a matter of fact, on page 10 at paragraphs 13 and 14. Then, in paragraph 17, there is a description and assessment of the statutory declaration that was a subject of consideration. That was supplied to the Tribunal, which is paragraph 17 on page 10 and following.
MS COSTELLO: Your Honour, in the affidavit of Ms Milton from February, the NOICC itself – the notice of intention to cancel – is there.
HER HONOUR: Just one moment, please. Where do I find this, I am sorry?
MS COSTELLO: It is the affidavit, filed on 27 February 2024, of Ms Milton.
HER HONOUR: I have the NOICC at page 23 of that affidavit.
MS COSTELLO: Yes, and in this NOICC ‑ ‑ ‑
HER HONOUR: And it has the same – I see, it has the same facts as were set out in the cancellation decision itself on page 25.
MS COSTELLO: Yes, so at page 31 – at the top of the page numbered 31 – at paragraphs 68 and 69, for example, there is reference to what was claimed before the Tribunal and what the Tribunal determined.
HER HONOUR: Yes, I see. Thank you, I understand it now.
MS COSTELLO: The two pages that set out what it is that the
notice is based on are in that same affidavit, the number at the top being
page
19. There is a box saying “NOICC” and “Last Known
Address” and it talks about what has been checked, and
it says
“ICSE” and “TRIM”, and the “Assessment” and
“Reason for assessment” is:
Address provided in conjunction with citizenship application –
We submit that, based on that, you should conclude that the inquiry
stopped at the end of the citizenship application, in terms of
what identifying
address or phone number was provided. You can find that based on that piece of
evidence, combined with the use
of the phone numbers – which is over
the page, in the table – which are phone numbers both taken from
earlier, not the
AAT documents.
HER HONOUR: Thank you. Anything else?
MS COSTELLO: No, your Honour.
HER HONOUR: Will you have a conversation between the two of you and then send through notification to my Chambers or to the Registry about when you might file this additional material.
MS COSTELLO: Yes, your Honour, we will. Just one last thing is that I will also seek to agree with our learned friend if it seems useful to provide you with the relevant guideline, which include the CROC.
HER HONOUR: Even just a reference to it and the relevant parts to it will be very helpful.
MS COSTELLO: Yes. The other thing is, as you know, we are instructed by five plaintiffs, some are adult and some are minors, and just to flag in respect of any costs, we would seek to be heard on costs, or perhaps to potentially even talk to our learned friends around costs, any orders and how they affect the children, as opposed to the adults, in respect of the application. I do not seek to make any application now but raise it so that – sometimes when judgment is delivered the cost decision has already been made. I just wanted flag that we would seek to be heard in respect of cost orders in respect of the various family members.
HER HONOUR: I understand. You may even have a discussion with Mr Hill on if that can be addressed, as well. That is fine. If it cannot, depending on the outcome, I will take that into account.
MS COSTELLO: May it please the Court.
HER HONOUR: Can I thank everyone for their assistance and adjourn the Court.
AT 12.29 PM THE MATTER WAS ADJOURNED
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