Does s 501CA(3) concern a decision? Is capacity relevant? McCulloch ignored?

Federal Court (Full Court): In Chung, FCA held that visa refusal notification under s 66 was no decision for the purpose of s 476. That led FCA to hold in BYN18 that a s 501CA(3)(a) notice was no decision for that purpose. Was BYN18 wrongly decided? If so, could Chung be revisited? In SZQDZ, FCAFC held that decision of an IMR was not a “migration decision” for the purpose of ss 476 / 477. HCA then held in SZSSJ that an ITOA was a “migration decision” for that purpose. Did SZSSJ impliedly overrule SZQDZ, as FCA held in EKU17? Is obligation under s 501CA(3) discharged if non-citizen does not have capacity to understand notification & invitation purportedly issued under it? Are there implications to or from DFQ17? With respect, FCAFC seems to have ignored the existence of McCulloch, which had already answered one of the above questions on which the Federal Court is now divided 2:2.

The Appellant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) on character grounds while he was imprisoned.

An officer of the Department emailed the correctional centre were the Appellant was located, attaching a notification of visa cancellation, purportedly issued under s 501CA(3)(a), and an invitation for the Appellant to make representations seeking revocation of the visa cancellation, purportedly issued under s 501CA(3)(b). That email urged the correctional centre to obtain a signature from the Appellant acknowledging receipt of those documents.

An officer of the Department of Corrective Services in Queensland delivered the Appellant the notification and the invitation and obtained the Appellant's signature acknowledging receipt of those documents.

The Appellant was illiterate in his own language, had extremely limited English capabilities and suffered from a mental health condition at the time he provided his signature. There was evidence that the Appellant struggled to understand the documents he had received, which comprised a bundle containing 86 pages. In fact, he did not understand he had received information regarding the cancellation and an invitation to seek revocation.

No interpreter was present when he received those documents. He asked to make a phone call to obtain assistance regarding those documents, but was never allowed to make that call. His solicitors, who knew his visa would be mandatorily cancelled at some stage, asked the Department whether the visa had been cancelled, but the Department did not provide an answer until, by means of an FOI request, it was more than 28 days since the Appellant received the invitation to seek revocation. The statutory deadline for seeking revocation was 28 days from the date of notification.

The Appellant was not entitled to apply to the Tribunal for merits review of any non-revocation decision, as such decision was never made.

As the cancellation decision itself did not seem to be vitiated with jurisdictional error and as there had been no decision under s 501CA(4) about revocation, the only option left to the Appellant was to apply to the Federal Circuit Court (FCCA) for judicial review and challenge the validity of the notice and invitation purportedly issued under s 501CA(3), which he did.

The relief sought by the Appellant at the FCCA was as follows:

a. A declaration that the delivery of material and information to the Applicant on 4 January 2017 (purported section 501CA(3) notice) did not comply with section 501CA(3) of the Migration Act 1958 (Cth) (Migration Act).

b. A writ of mandamus requiring the Minister or his delegate to take actions required by section 501CA(3) of the Migration Act in accordance with law.

The ground of judicial review, as summarised by the Full Court of the Federal Court (FCAFC), was that there was no evidence "that the Minister gave the appellant written notice and particulars of the relevant information consistent with s 501CA(3)(a) in a way that could be described as “a way the Minister considers appropriate in the circumstances”(of the appellant), or that the Minister, by his delegate, invited the appellant to make representations for the purposes of s 501CA(3)(b), when the invitation was not real and meaningful having regard to the circumstances of the appellant".

Before the FCCA, the Minister argued that the FCCA lacked jurisdiction to determine the matter as follows:

  • although s 476(1) conferred on the FCCA the same original jurisdiction in relation to "migration decisions" as the HCA has under s 75(v) of the Constitution, the actions purportedly taken pursuant to s 501CA(3) do not satisfy any of the following types of "migration decision" under s 5:
    • (a) a privative clause decision
    • (b) a purported privative clause decision
    • (c) a non-privative clause decision
    • (d) an AAT Act migration decision
  • (a) those actions do not constitute a "decision" within the meaning of 474(3). Therefore, they do not constitute a privative clause decision within the meaning of s 474(2);
  • (b) by reason of 5E, those actions did not constitute a purported privative clause decision;
  • (c) by reason of s 474(4), those actions did not constitute a non-privative clause decision under s 476(6);
  • (d) by reason of s 474A, those actions did not constitute an AAT Act migration decision;
  • therefore, those actions were not amenable to judicial review by the FCCA.

In essence, the Minister's argument was to the practical effect that, however those actions might be properly characterised, they could only be challenged by way of an application to the High Court under its original jurisdiction, not by way of an application to the FCCA.

The FCCA held it had jurisdiction, but dismissed the judicial review application and the Appellant eventually appealed the FCCA's decision to the Federal Court (FCA), a Full Court of which (FCAFC) heard the appeal.

On appeal, the Appellant and the Minister essentially made the same arguments they had made to the FCCA.

The Appellant had only 3 possible ways of establishing that those actions constituted a decision for the purpose of s 474(3):

  1. To establish that, even if those actions themselves did not constitute a migration decision, they were nevertheless matters "in relation to" a migration decision, namely the cancellation decision under s 501(3A). That would bring those actions within the wording of s 476(1); or
  2. To establish that those actions themselves constitute a migration decision. That would also bring those actions within the wording of s 476(1).
  3. That those actions constituted “conduct preparatory to the making of the decision" under s 501CA(4) to revoke, or not revoke, the cancellation decision, thus bringing them within the wording of s 476(1).

The Minister found himself between a rock and a hard place in that:

  • the only argument he could make was that those actions were "simply 'procedural steps' or 'steps along the way' to a possible decision to revoke the cancellation decision (or not to revoke it) under s 501CA(4) if the relevant decision-making contemplated by that subsection ever became engaged by reason of representations having been made within the period, and in the manner required, by the Regulations"
  • by making that argument, he ran the risk of the FCAFC interpreting those actions as falling within s 474(3)(h) as “conduct preparatory to the making of the decision" under s 501CA(4) to revoke, or not revoke, the cancellation decision (see third bullet point above).

The questions to the FCAFC were as follows:

Question 1: Can it be said that, even if the actions purportedly taken under s 501CA(3) themselves did not constitute a migration decision, they were nevertheless matters "in relation to" a migration decision, namely the cancellation decision under s 501(3A), thus bringing those actions within the wording of s 476(1) and enlivened the FCCA's jurisdiction?

Question 2: Can it be said that the actions purportedly taken under s 501CA(3) themselves constituted a migration decision by reason of s 474(3)(g), thus bringing those actions within the wording of s 476(1) and enlivened the FCCA's jurisdiction?

Question 3: Can it be said that the actions purportedly taken under s 501CA(3) were "simply 'procedural steps' or 'steps along the way' to a possible decision to revoke the cancellation decision (or not to revoke it) under s 501CA(4) if the relevant decision-making contemplated by that subsection ever became engaged by reason of representations having been made within the period, and in the manner required, by the Regulations"?

Question 4: Can it be said that conduct preparatory to the making of a decision under s 501CA(4) falls within s 474(3)(h), thus enlivening the FCCA's jurisdiction?

Question 5: If the answer to Question 4 is "yes", were the actions purportedly taken under s 501CA(3) properly characterised as “conduct preparatory to the making of the decision”?"

Question 6: Was BYN18 wrongly decided?

Question 7: The FCA held in EKU17 that the HCA's decision in SZSSJ had impliedly overruled the FCAFC's decision in SZQDZ. Was EKU17 wrongly decided?

Question 8: In the circumstances of this case, was the obligation under s 501CA(3) to "give" the Appellant particulars of why his visa was cancelled and "invite" him to make representations seeking revocation discharged?

Question 9: The invitation to seek revocation handed to the Appellant included the following passage: "The combined effect of s 501CA(3)(b) and s 501CA(4)(a) of the Act and Regulation 2.52 of the Regulations is that any representations MUST be made within 28 days after you are taken to have received this notice". Can it be said that, as r 2.52 does not include that language (e.g. taken to have received), that invitation was "both incorrect and incomprehensible to the appellant"?

Question 10: Can it be said that, by reason of s 497(2), the officer who had been delegated power under s 496(1) to cancel the visa did not need to be delegated power under the latter provision to take action under s 501CA(3)?

Question 11: Can it be said that the officer who cancelled the Appellant's visa and had been delegated power under s 496(1) to do so did not need to be delegated power under that provision to take action under s 501CA(3), as that action should be "characterised as simply part of the multifarious functions forming the business of government"?

Question 12: Was the invitation purportedly issued under s 501CA(3)(b) invalid in that it was handed to the Appellant by a correctional officer who had no authority to do so?

Question 13: Can it be said that, "[a]lthough the letter recites that 'this notice was transmitted to you by email' and thus the appellant is 'taken to have received it at the end of the day on which it was transmitted', the letter ... was not sent to the appellant by email but rather, sent by email to an Officer of the Brisbane Correctional Centre" who then gave the letter to the Appellant by hand? If so, what are the consequences of that distinction?

Question 14: Do the "general provisions of ss 494A to 494C as to the manner in which the Minister may 'give' documents under the Act ... apply to s 501CA"?

Question 15: Can it be said that "because, on 1 June 2017, the appellant’s migration agent received a copy of the 3 January 2017 notice and invitation [in response to an FOI request], this somehow reset the 28 day time period"?

Question 16: Can it be said that if the FCAFC holds that the Minister did not discharge his duties under s 501CA(3), the "matter should be remitted to the Federal Circuit Court because it should be able to make findings of fact"?

Question 17: Can it be said that, "on the footing that the Minister’s delegate’s emailing of the notification and invitation to the generic DCS email address were the relevant acts, ... in the absence of his consent to this particular means of communication, and none had been given to the Minister, it was not effective, having regard to s 9(1)(d) and s 9(2)(d) of the Electronic Transactions Act 1999 (Cth) (ETA)"?

The FCAFC delivered three separate judgements, which answered those questions as follows:

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