Difference between criminal and immi detention

Federal Court. Does “giving” a document within the meaning of r 5.02 require “actual delivery” to detainee or authorised person? The definition of "immigration detention" under s 5(1) includes "being held by, or on behalf of, an officer ... in a prison or remand centre of the Commonwealth, a State or a Territory". Does the fact that a State prison can be a place of immigration detention mean that a person there held is in immigration detention? Does the cancellation of a person's visa while that person is in criminal detention itself convert the criminal detention into immigration detention? Was the Applicant's last residential address known to the Minister the address where he was serving a prison sentence? Was BDS20 plainly wrong?

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Does “giving” a document within the meaning of reg 5.02 of the Migration Regulations 1994 (Cth) require “actual delivery” to the detainee or his/her authorised person?

Question 2: The definition of "immigration detention" under s 5(1) of the Migration Act 1958 (Cth) includes "being held by, or on behalf of, an officer ... in a prison or remand centre of the Commonwealth, a State or a Territory". Does the fact that a State prison can be a place of immigration detention mean that a person there held is in immigration detention? Or does a person enter immigration detention only as a result of an executive act taken pursuant to s 189?

Question 3: Does the cancellation of a person's visa, which renders that person an unlawful non-citizen, while that person is in criminal detention itself convert the criminal detention into immigration detention?

Question 4: If a person enters immigration detention only as a result of an executive act taken pursuant to s 189, does any of the following constitute such act: service of the notice issued pursuant to s 501CA(3) on the non-citizen while in criminal detention; an email from the Minister's department to the Secretary of the Parole Board, and the Department of Justice, notifying them of the visa cancellation?

Question 5: If the Applicant was in immigration detention while his visa was cancelled, with the result that he should have been notified pursuant to s 501CA(3) under r 2.55 instead of r 5.02, did the Tribunal err by treating the Applicant's last residential address known to the Minister as the address where he was serving a prison sentence?

Question 6: In BDS20, the FCA had decided that there was no discretion under s 501CA(4) to allow the Minister (or Tribunal) to consider a late representation for revocation. Was BDS20 plainly wrong?

The FCA answered those questions as follows:

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