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Whether capacity of respondent to understand written notice, particulars, and invitation relevant to whether duties in s 501CA(3) Migration Act 1958 (Cth) were performed.

Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 (10 March 2021)

Intro:-

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

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


Facts:-

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

On 3 January 2017, a delegate of the Minister made a decision to cancel the respondent's visa under s 501(3A) of the Migration Act. the delegate explained, among other things and by reference to various provisions of the Migration Act, that under s 501(3A) of the Migration Act the Minister was required to cancel the respondent's visa because the delegate was satisfied that the respondent had a "substantial criminal record", having satisfied the requirement of being sentenced to a term of imprisonment of 12 months or more.

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

The respondent signed the formal acknowledgement of receipt, and he dated that acknowledgement 4 January 2017. But although the respondent provided the formal acknowledgement of receipt of the letter and enclosures, it appears that he was confused about the contents. His native language is Hazaragi. He spoke broken English, his ability to read or write in English was limited, and he had been suffering from a schizophrenic illness due to substance abuse and traumatic events at the hands of Taliban soldiers. A further case note entry on 4 January 2017 recorded that the respondent "expressed concern with reading and understanding the deportation documentation provided to him during the interview".


Issues:-

First, must the Minister have regard to the facts that established the respondent's incapacity to understand the letter and enclosures? It was submitted that the Minister was required to have regard to circumstances of incapacity by the requirements in s 501CA(3) that the Minister "give" the notice to the respondent, give "particulars", and "invite" the respondent to make representations and that this was to be done "in the way that the Minister considers appropriate in the circumstances".

Secondly, must the delivery of the letter and enclosures to the respondent be a delegate of the Minister under s 496 of the Migration Act?

Thirdly, is the Minister required under s 501CA(3)(b) to specify the date by which representations must be made?


Analysis:-

The relevance of the respondent's capacity to understand

The starting point is the common or ordinary meanings of the verbs "give" and "invite" in s 501CA(3). Those common meanings are, respectively, to deliver or hand over[21] and to request politely or formally[22]. The use of "give or deliver unto" in legislation has been described as the "exact equivalent" of "has been served on" in a context where a document "had come to the hands of the applicant"[23]. Section 28A of the Acts Interpretation Act 1901 (Cth) is also premised upon the assumption that verbs such as "give", when used in Commonwealth legislation, are alternatives to "serve" so that one manner in which giving a document can be satisfied is "by delivering it". The verbs "give" and "invite" connote only the performance of an act rather than the consequences of that performance such as the recipient's capacity to comprehend the content of the English notice given or the English invitation made.

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

The assumption that merely requiring the Minister to give these particulars and to invite comment does not require the applicant to understand their contents is reflected in s 57(2)(b), which contains an additional requirement for the Minister to "ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application".


Is the Minister or delegate required personally to perform the duties in s 501CA(3)?

S497(2) of the Migration Act ensures that the delegate who exercised the power to cancel the respondent's visa under s 501(3A) was not required personally to give the respondent the written notice, particulars, or invitation required by s 501CA(3).
1. The general principle based in part on administrative necessity is extended by s 497(2), which permits a delegate to act through a duly authorised officer of the Department in the performance of any task in connection with the cancellation of a visa other than the taking of a decision to cancel the visa. The Explanatory Memorandum to the Migration Legislation Amendment Bill 1994 (Cth), which introduced s 497(2), provided that a purpose of the amendment was to "put beyond doubt that a delegation to cancel visas does not require the delegate to personally perform any task except taking the decision as to whether the visa should be cancelled"[35].


The notice of contention: the incorrect time period

But the words of s 501CA(3)(b) which require the Minister to invite a person to make representations "within the period and in the manner ascertained in accordance with the regulations" also require that there be sufficient information on the face of the invitation to permit the person to determine this period correctly. This conclusion is further supported by the condition upon the Minister's power to revoke the cancellation decision that representations be made within the prescribed time limit. It can hardly be supposed that Parliament intended that a person whose visa had been cancelled would not be given the information that would reveal the date by which representations must be made if the person is to avoid the strict consequences of failing to make representations[37].

For these reasons, an invitation to make representations "within the period ... ascertained in accordance with the regulations" must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the invitation such as "28 days from the day that you are handed this document". The invitation in the letter from the delegate of the Minister did not do so. The notice of contention should therefore be upheld.

Conclusion:-

The appeal should be dismissed. The Minister undertook to pay the costs of the respondent in this Court.

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