High Court. Can it be said that the giving of the notice, particulars and invitation under s 501CA(3) of the Migration Act 1958 (Cth) "will not be legally efficacious if those documents are given to a person who lacks legal capacity to make decisions with respect to the notice and invitation at the time the notice and invitation was delivered to them, including lacking the capacity to grant an enduring power of attorney or to apply for a guardian to be appointed in relation to the notice and invitation"?
Some of the questions to the High Court (HCA) were as follows:
Question 1: Is it "a fundamental principle that, in order for a person to do a legally effective act, they must have the necessary legal capacity to do so"?
Question 2: Is there "a presumption that every person of full age has the mental capacity to manage their own affairs", with the "burden of proving to the contrary rests with those asserting incapacity"?
Question 3: Is the involuntary detention of individuals who are mentally unwell legitimate, as such detention may be characterised as protective of the person and thus as non-punitive?
Question 4: Is the phrase "as soon as practicable" in s 501CA(3) of the Migration Act 1958 (Cth) bound up with the act of giving notification, in that the word "give" in s 501CA(3)(a) connotes the physical performance of an act, namely service of the notification, as distinct from the consequences which follow thereafter? In other words, is the phrase "as soon as practicable" directed only at the physical step of giving notification and no more?
Question 5: Can it be said that the giving of the notice, particulars and invitation under s 501CA(3) of the Migration Act 1958 (Cth) "will not be legally efficacious if those documents are given to a person who lacks legal capacity to make decisions with respect to the notice and invitation at the time the notice and invitation was delivered to them, including lacking the capacity to grant an enduring power of attorney or to apply for a guardian to be appointed in relation to the notice and invitation"?
Question 6: Will service be effective if the person has a validly appointed guardian who has power to make representations to the Minister on the person's behalf, in which case notification should be made to that guardian?
Question 7: Is there a presupposition in legislation that the factual exercise of authority would be free from fraud so that the exercise of fraud could disable an authority from "the due discharge of its imperative statutory functions"?
Question 8: Can it be said that, "like an assumption of absence of fraud, the assumption of legal capacity does not depend on the knowledge of the Minister"?
Question 9: Can it be said that, no duty existed to give written notice to the appellant of the decision to cancel his visa and to invite the appellant to make representations, and that such duty was not enlivened until the appointment of his guardian?
Question 10: If the answer to Question 5 is 'yes', will a person lack legal capacity for the purpose of s 501CA if their only limitation is a difficulty or disability in understanding the notice, the invitation to make representations about the cancellation of the visa, or the potential consequences of not doing so (such as detention and removal from Australia if practicable)?
Question 11: Is it difficult to envisage the Minister considering that it would be in the national interest to cancel the visa of a person while the person is being held in a facility or institution due to their lack of mental capacity?
The HCA answered those questions as follows: