s 501CA(3): circumstances of recipient & notification validity

High Court. Do the verbs "give" and "invite" in s 501CA(3) require that regard be had to the circumstances of the recipient? Must the information and invitation be given by the Minister, or a delegate, personally? Did the timeframe of 28 days within which to make a revocation request under s 501CA(4) run from the date the invitation was sent via email to the immigration detention centre, instead of when it was handed to the respondent a day later? By incorrectly stating the 28 days by reference to the date of the email, was the invitation invalid? Can an analogy be drawn with DFQ17 ?

Some of the questions to the High Court (HCA) were as follows:

Question 1: Should the written notice, particulars, and invitation under s 501CA(3) of the Migration Act 1958 (Cth) be sent in English?

Question 2: Do the verbs "give" and "invite" in s 501CA(3) require that regard be had to the circumstances of the literacy of the recipient, their capacity to understand English, mental capacity and health, and facilities available to them in custody?

Question 3: If Questions 2 and 3 are to be answered in the affirmative, does it follow that "the expression "in the way that the Minister considers appropriate in the circumstances" is only concerned with the method of delivery and request rather than the content"?

Question 4: The following provisions of the Act require the Minister to (1) give information, (2) invite comments and (3) ensure, as far as is reasonably practicable, that the recipient understands why it is relevant: ss 57, 120(2), 359AA(1), 359A(1), 424AA(1), and 424A(1). Can it be said that the third requirement assumes that merely requiring the Minister to give these particulars and to invite comment does not require the recipient to understand their contents, thus supporting the view that Questions 1 to 3 should be answered in the affirmative?

Question 5: Must the information and invitation under s 501CA(3) be given to the recipient by the Minister, or the Minister's delegate, personally?

Question 6: Did the timeframe of 28 days within which to make a revocation request under s 501CA(4) run from the date the invitation under s 501CA(3) was sent via email to the immigration detention centre were the respondent was detained or would it run from the day after, when the correctional centre served that letter on him?

Question 7: The invitation letter stated that the timeframe within which to make a revocation request was "within 28 days after you are taken to have received this notice". It also stated as follows: "As this notice was transmitted to you by email, you are taken to have received it at the end of the day it was transmitted". Can it be said that, "in the absence of any manner of ascertaining that 28-day period, and by incorrectly saying that the respondent was "taken to have received [the letter] at the end of the day it was transmitted [by email]" ... , the letter did not invite representations "within the period ... ascertained in accordance with the regulations"?

The HCA answered those questions as follows:

The remainder of this article is only available to Case Law and Platinum subscribers.

Read our Terms & Conditions and upgrade below:

Monthly Subscriptions

Premium
Basic Content
Premium Content
-
-
$ 29 /month
Subscribe
Case Law
Basic Content
-
Case Law Content
-
$ 49 / month
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 9 / month
$ 69 / month
Subscribe

Annual Subscriptions

Premium
Basic Content
Premium Content
-
Save $ 49 / year
$ 299 / year
Subscribe
Case Law
Basic Content
-
Case Law Content
Save $ 89 / year
$ 499 / year
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 237 / year
$ 699 / year
Subscribe

 

Where GST applies, the above amounts are inclusive of GST.

Content Types

Basic Content includes basic news, some media articles and selected announcements.

Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.

Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.

Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.

If you already have a Case Law or Platinum subscription, click on 'Login' below.