Consideration
34 Ground 1 concerns the construction of s 501CA(3) of the Act and in particular the words "[a]s soon as practicable" in the chapeau to the subsection.
35 Section 501CA(3) of the Act requires that, upon the Minister mandatorily cancelling a visa under s 501(3A) of the Act, he or she is required, "as soon as practicable" after making the cancellation decision, to give the person whose visa is cancelled a written notice of the decision and particulars of the relevant information (as defined in s 501CA(2)) and to invite the person to make representations in the manner prescribed about revocation.
36 In considering the meaning of a legislative provision, the starting point is the text while at the same time regard is had to context and purpose: see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ).
37 Thus the starting point to consider the appellant's argument is the text of s 501CA(3) of the Act and, in particular, the common and ordinary meaning of the phrase "as soon as practicable". The appellant and the Minister agree that "practicable" as used in the context of s 501CA(3) of the Act means feasible. So much can be accepted. The Oxford English Dictionary (online edition) defines "practicable" to mean "[a]ble to be done or put into practice successfully; feasible; able to be used; useful, practical, effective". That is, the steps required by s 501CA(3) of the Act are to be taken as soon as it is feasible to do so.
38 The parties diverge in relation to when the giving of a notice is feasible. The appellant contends that, having regard to the context and purpose of s 501CA(3) of the Act, the question of what is feasible extends beyond the mere act of delivery of the notice and related material prescribed by s 501CA(3) to an assessment by the Minister of the recipient's ability to respond to a notice. The Minister contends that the term "as soon as practicable", and the question of what is feasible, concerns only the act of delivery of the notice. That is, as the primary judge found to be the case, the requirement that a notice be given as soon as practicable is part of a temporal limitation imposed on the Minister and does not extend beyond the act of delivery.
39 We agree with the primary judge that, having regard to its text, context and purpose, s 501CA(3) of the Act is concerned only with the feasibility of giving the notice and the invitation to make representations to revoke the cancellation decision. Our reasons follow.
40 First, that construction of s 501CA(3) of the Act is supported by EFX17.
41 In EFX17 the respondent was an Afghani national. His native language was Hazaragi, he spoke only broken English, had limited ability to read and write in English and was suffering from a schizophrenic illness. By letter dated 3 January 2017 a delegate of the Minister notified the respondent pursuant to s 501CA(3) of the Act of the decision to cancel his protection visa made on the same day, explained that the respondent had an opportunity to make representations about revoking the decision to cancel his visa and described how to do so. The delegate's letter was handed to the respondent by an officer at the Brisbane Correctional Centre, where he was serving a term of imprisonment, on 4 January 2017. The respondent signed a formal acknowledgement of receipt on the same date.
42 On 9 June 2017 the Prisoners' Legal Service, which was appointed to represent the respondent, wrote to the Department requesting that the notice of cancellation of the respondent's visa be reissued. They explained that this was because the respondent's capacity to understand the nature of the visa cancellation and revocation process was "significantly impaired". The Prisoners' Legal Service said that all communications between it and the respondent had been through a Hazaragi interpreter but, even with that assistance, the respondent had difficulty understanding advice and instructions on simple topics. The Department subsequently informed the Prisoners' Legal Service that the notice of cancellation would not be reissued because it was "legally effective".
43 The Minister contended that the majority in EFX17 (Full Court) erred in concluding that the Minister failed to "give" the respondent the notice and particulars and to "invite" him to make representations having regard to the circumstances of the respondent's literacy, capacity to understand English, mental capacity and health and facilities available to him in custody: EFX17 at [22]. The issue raised was the meaning of those words in subs 501CA(3)(a) and (b) of the Act.
44 At [23] of EFX17 the High Court (Kiefel CJ, Gageler, Keane, Edelman and Steward JJ) said:
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 and to request politely or formally. 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". 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.
45 At [25]-[26] their Honours relevantly continued:
25 When "giving" and "inviting" bear their ordinary meanings - respectively, of delivering and of requesting formally - with the implication that the delivery and request will be made in English, then it follows naturally 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. As senior counsel for the respondent properly accepted, a requirement that the Minister consider the capacity of a person to understand the written notice or invitation would require more than physical delivery.
26 The statutory context, including other provisions of the Migration Act, reinforces the conclusions that in s 501CA(3) the verbs "give" and "invite" bear their ordinary meaning and that the expression "the way that the Minister considers appropriate in the circumstances" concerns only the method of delivery or invitation rather than the substantive content.
46 The High Court concluded (at [31]) that the majority of the Full Court in EFX17 (Full Court) erred in finding that the capacity of a person to understand the notice, relevant information or invitation required by s 501CA(3) of the Act was relevant to whether the notice and relevant information had been given or the invitation had been made.
47 Thus a notice is given and invitation is made under s 501CA(3) of the Act even where the recipient cannot speak English and does not understand the notice or invitation. As the Minister submits, no proper distinction can be drawn between a person who cannot as a practical matter respond within the time prescribed to an invitation to seek revocation under s 501CA(3) of the Act because of a lack of language skills and a person who cannot respond because of mental health issues. In each case the person lacks the capacity to respond.
48 Here the appellant relies on the phrase "as soon as practicable" to make good his argument that it is not just the way the notice is given, which was the subject of consideration in EFX17, but the time in which it is given that may bear on whether a notice and invitation is meaningful. But taking the meaning of practicable as feasible, there is no reason why the requirement of giving the notice and making the invitation as soon as feasible imposes any different obligation on the Minister beyond that found to be the case in EFX17 and, more particularly, an obligation to assess the ability of the recipient of the notice and invitation to respond.
49 Secondly, the appellant contends that the concept of "practicability" is concerned with feasibility and the assessment of feasibility in this context accommodates consideration of when giving the notice and making the invitation can serve its purpose. Namely, to give the person the requisite opportunity to make representations about revocation. By way of example, the appellant refers to a person in a coma following a car crash with no guardian appointed and makes the submissions summarised at [31(3)] above.
50 However, what is "practicable" is assessed from the point of view of those persons administering the scheme.
51 In M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 a Full Court of this Court (Goldberg, Weinberg and Kenny JJ) considered, among other things, s 198(6) of the Act which provides that "[a]n officer must remove as soon as reasonably practicable an unlawful non-citizen if: …". There follow subs (a) to (d) which set out the requirements to be met. At [64] the Full Court observed that the duty to remove an unlawful non-citizen is not absolute because "it does not arise as soon as the conditions in paras (a) to (d) are satisfied, but as soon thereafter as is 'reasonably practicable' for the officer to remove the non-citizen". At [65] the Full Court said:
The use in legislation of the expression "reasonably practicable" is not novel, and the authorities that discuss its use are numerous. In the authorities and in the Shorter Oxford English Dictionary, the word "practicable" has the meaning "capable of being carried out in action; feasible": see, eg Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 305 per Stephen and Mason JJ; also Adsett v K and L Steelfounders and Engineers [1953] 2 All ER 320 at 321 per Singleton LJ, and Lee v Nursery Furnishings Ltd [1945] 1 All ER 387 at 389 per Lord Goddard. Whether or not the removal of an unlawful non-citizen is practicable seems to be largely, if not entirely, concerned with whether the removal is possible from the officer's viewpoint. The word "reasonably" in the expression "reasonably practicable" limits or qualifies what would otherwise be an almost absolute obligation: cf Marshall v Gotham Co Ltd [1954] AC 360 at 373 per Lord Reid. The removal of a non-citizen may be practicable in the sense that it is feasible, but not "reasonably practicable" as required by s 198(6) of the Act.
(Emphasis added.)
52 The obligation in s 501CA(3) of the Act is to give the notice and make the invitation "as soon as practicable" without any limitation or qualification. By analogy with the reasoning of the Full Court in M38/2002 and, having regard to the ordinary meaning of "practicable", that obligation is concerned with whether the giving of the notice and the making of the invitation is practicable from the point of view of the person giving the notice and making the invitation.
53 The appellant relies on BDS20 at [118] where the majority (Banks-Smith and Jackson JJ), in considering the question of whether more than one notice can be given under s 501CA(3) of the Act, said:
Other hypothetical examples were put in submissions of situations where it was said that s 501CA(3)(b) would lead to injustice if it is construed to be exercisable only once. One was the example where, unbeknownst to the Minister, the person whose visa was cancelled was at the time of receipt of the invitation totally incapacitated from acting on it for medical reasons. It would be unfair to the person if the Minister could not issue the invitation again. We suspect there are other answers to the unfairness in that situation, such as an examination of whether it is indeed "practicable" to give notice to a person who is incapable of receiving it in any meaningful way. But we do not need to explore such hypothetical situations here, because such extreme situations cannot control the proper meaning of the text of s 501CA, in context.
54 The decision in BDS20 is set out in detail below (see proposed ground 4). While as explained below the reasons of the majority in BDS20 are persuasive their Honours' observations at [118] were obiter and were made in the context of considering a different aspect of the scheme in s 501CA of the Act. In any event, as their Honours observed, such extreme situations cannot control the proper meaning of the text of s 501CA of the Act.
55 Thirdly, the statutory context supports a construction of "practicable" in s 501CA(3) of the Act that promotes certainty in application and which does not depend on the capacity of the recipient to understand and/or respond to the notice given under the section. The relevant context includes:
(1) a notice must be given under s 501CA(3) of the Act when a person's visa is mandatorily cancelled under s 501(3A) of the Act. The matters to be included in the notice are prescribed by the terms of s 501CA(3) and the Regulations: it must inform the person of the cancellation decision and invite the person to make representations about revocation of the decision within 28 days after the person is given the notice. There is no discretion as to when a notice is to be given and or by when representations are to be made in support of revocation. The former must be done as soon as practicable and the latter within the time prescribed by the Regulations, 28 days after the notice is given: see BDS20 at [98]; and
(2) the consequence on a person of visa cancellation is that the person becomes an unlawful non-citizen and must be detained under s 189 of the Act. As discussed below (see [109]) in relation to proposed ground 4, s 198(2B) of the Act provides that an officer must remove a person who is an unlawful non-citizen as soon as reasonably practicable if the person's visa has been cancelled under s 501(3A) of the Act and where the person has been invited under s 501CA of the Act to make representations about revocation of the cancellation decision: either he or she has not made representations and the time for making the representations has ended; or he or she has made representations in accordance with the invitation but the Minister has decided not to revoke the cancellation decision. This aspect of the legislative scheme, which requires certainty as to the period for which a person is detained leading to removal, equally supports a construction of s 501CA(3) of the Act that promotes certainty.
56 Fourthly, the appellant's reliance on Soondur by analogy to support his construction, namely that feasibility is to be assessed having regard to when the giving of the notice can serve its statutory purpose of giving the person a real opportunity to make representations about revocation, is inapt.
57 The facts in Soondur were not straightforward. In summary the first appellant, who was the mother of the second and third appellants, applied for, and was subsequently refused, a protection visa in 1992. On 19 December 2000 she made a second application for a protection visa. A delegate of the Minister refused the second application because of the operation of s 48A of the Act which relevantly provided that a non-citizen who has made an application for, and been refused, a protection visa may not make a further application for a protection visa. The appellants sought judicial review but were unsuccessful.
58 On appeal the second appellant challenged the decision refusing the grant of the visa on the basis that she made the second application in her own right. The questions that arose were whether that was in fact so and the consequence of including in a protection visa application an infant child of an adult who is the primary applicant.
59 At the time s 48A of the Act provided:
(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made:
(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the applications have been finally determined); or
(b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa while in the migration zone.
…
(2) In this section:
application for a protection visa includes:
(a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(b) an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.
60 The appellant draws on [35] and [38] of Soondur where Gray J (with whom Goldberg J agreed) said:
35 Of particular relevance to a case such as the present is a further element that must be considered in determining whether an applicant ``has made'' a previous application. It is trite to say that an act generally only has legal effect if the mind of the person performing it accompanies its performance. The making of a purported application by a person who lacks capacity to make such an application will not be regarded as an application. At common law, infants (that is, persons under the age of 21) were regarded as lacking capacity to do many things, particularly to enter into contracts other than certain defined classes of contracts. Commonly, the age of majority has been reduced by statute to 18. There is statutory recognition of the potential incapacity of a person not of full age who has come to Australia unaccompanied by an adult.
…
38 With respect to the making of applications pursuant to the Migration Act generally, the situation seems to be that it is necessary to inquire whether a particular non-adult applicant in fact had capacity (in the sense of sufficient understanding of the nature of the act involved) to make an application, at the time when the application was made. See Munkayilar v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 588 at 591-592; Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313 at [36]-[39] and Jaffari v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 524 at 537 [37]. Thus, before it can be determined that a person "made" a previous application, there must be a factual inquiry as to the age of that person and as to his or her capacity to understand the nature of such an application.
61 However, in Soondur the Full Court was concerned with the effect of s 48A of the Act and whether a non-citizen had made an application. In those circumstances it is understandable that the non-citizen's capacity to make the application at the time was relevant. In contrast s 501CA(3) of the Act does not impose any obligation on a non-citizen to do anything. It requires the Minister to take steps to give the notice and the invitation as prescribed "as soon as practicable".
62 Fifthly, the question of when giving notice under s 501CA(3) of the Act is "practicable" is not a question of objective jurisdictional fact that can be determined on the basis of new material not known to the Minister at the time the notice was given to the person. It is an evaluative question (see BDS20 at [79]) and is to be made based on material known to the Minister.
63 As to the latter, in EFX17 (Full Court), commencing at [232], Logan J in dissent considered the decision in WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94; [2004] HCA 50. His Honour noted at [233] that the issue in that proceeding was "whether, as the Act then stood, a proceeding challenging a Refugee Review Tribunal decision had been instituted in this Court within time" which in turn "depended upon whether and, if so, when the appellant had been 'notified' of that tribunal's decision". After referring to the obiter statements in the joint judgment of Gleeson CJ, McHugh, Gummow and Heydon JJ in WACB his Honour said at [234]:
As a matter of construction, "give" in s 501CA(3)(a) is qualified by "the way" and, in turn, "the way" is qualified by "the Minister considers appropriate in the circumstances". I accept the Minister's submission that, because s 501CA does not specify that the notice and relevant information must be given in a particular way, for example under s 494B of the Act, the Minister was, for example, able permissibly to adopt a method specified in or under s 494A (which would include any method specifically prescribed in the Regulations): s 494A(1) of the Act. "Way" in s 501CA(3)(a) permissibly embraces the "methods" specified in or under s 494A, if the Minister considers one of these appropriate
64 At [236] Logan J also relevantly said:
A "considers appropriate" qualification was not present in the provision considered in WACB. It may therefore be arguable that, if the Minister knew, actually or constructively, at the time of choosing the way of giving that the person concerned was an infant, was not of mental capacity, was illiterate or was blind and sent the notice directly to that person, as opposed to a parent, guardian or carer, his choice of way might be amenable to judicial review on the basis of unreasonableness, or failure to take into account such a circumstance. The appellant contended as much. The difficulty with confining the focus of s 501CA(3) just to a choice of means or "way", isolated from the personal circumstances of the person whose visa has been cancelled, is that, in context, there is no reason to read down "the circumstances" as excluding those of the person whose visa has been cancelled and every reason to read that expression as including but not limited to that person's circumstances.
65 At [237] Logan J noted that he was not required to reach any concluded view on the subject because there was no evidence that the Minister either knew or ought to have known of the appellant's literacy and mental capacity circumstances. His Honour's statements were expressly approved in EFX17 at [21].
66 There are other reasons which tend against the question of what is practicable being a jurisdictional fact.
67 First, while s 501CA(3) of the Act does not expressly refer to the Minister's satisfaction as to what is practicable, the evaluative nature of the assessment of that question tends against it being a jurisdictional fact: see Construction, Forestry, Maritime, Mining and Energy Union v Anglo American Australia Limited (2019) 271 FCR 22 at [107] (Kerr and O'Callaghan JJ).
68 Secondly and relatedly, as we have already observed, practicability is assessed from the point of view of the person administering the scheme which tends against it being something that the Court would determine for itself.
69 Thirdly, assessing what is practicable as a jurisdictional fact would, as the primary judge identified at [75] of BIF23, lead to inconvenience and delay, contrary to the purpose of the scheme. There would be uncertainty as to whether a notification under s 501CA(3) of the Act was effective until a court had undertaken its review: see too Chattaway v Minister for Health and Wellbeing (2020) 136 SASR 347 at [34].
70 The appellant relies on Commonwealth of Australia v AJL20 (2021) 273 CLR 43 at [28]-[32], referring in particular to [30]-[32] where a majority of the High Court (Kiefel CJ, Gageler, Keane and Steward JJ) said:
30 In M96A/2016 v The Commonwealth, Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ said that, by this last observation in Plaintiff S4, it had been meant that "there must be objectively determinable criteria for detention". Their Honours explained that this second limitation on the amplitude of the Parliament's power to authorise executive detention flows from the need to ensure that:
"Parliament cannot avoid judicial scrutiny of the legality of detention by [legislating] criteria which are too vague to be capable of objective determination. This would include an attempt to make the length of detention at any time dependent upon the unconstrained, and unascertainable, opinion of the Executive."
31 In Plaintiff M96A, the plurality concluded that ss 189(1) and 196(1) did not exceed the Parliament's power on this basis because:
"The duration of the detention of transitory persons who are detained under s 189 of the Act is able to be objectively determined at any time, and from time to time. At any time it can be concluded that detention in Australia will conclude if any of the various preconditions [in s 196(1)] are met."
32 To similar effect, Gageler J said:
"[T]he duration of the detention is capable of objective determination by a court at any time and from time to time. From the moment of the commencement of the detention under s 189, duration of the detention is made by s 196(1)(a) and (aa) to depend on performance of the duty to remove imposed by s 198(1A) or by s 198AD(2)."
(Footnotes omitted.)
71 In AJL20 the High Court considered the construction of ss 189, 196 and 198 of the Act and the question of whether the respondent's detention was lawful under s 189(1) of the Act. In doing so the majority observed that there must be objectively determinable criteria for detention because the length of detention could not be dependent on "the unconstrained, and unascertainable, opinion of the Executive".
72 In Chattaway a Full Court of the Supreme Court of South Australia considered the construction of s 269V(2) of the Criminal Law Consolidation Act 1935 (SA) (CLC Act). Relevantly under s 269V(1) if a defendant was committed to detention under Div 4 of Pt 8A of the CLC Act, the defendant was in the custody of the Minister for Health and Wellbeing (Health Minister) and the Health Minister could give directions for the custody, supervision and care of the defendant that the Health Minister considered appropriate. Section 269V(2) provided at subs (a) that the Health Minister may place the defendant under the custody, supervision and care of another and at subs (b) that if there was no practicable alternative, direct that a defendant be kept in custody in a prison.
73 Under s 269V(2) of the CLC Act the Chief Psychiatrist, as delegate of the Health Minister under s 269V(4) of the CLC Act, placed the applicant in the custody, supervision and care of the Chief Executive of the Department for Correctional Services and directed that the applicant be detained at Yatala Labour Prison from 26 March 2020 to 28 July 2020. The applicant commenced an action for habeas corpus and judicial review of the decisions made under s 269V(2) of the CLC Act. He contended that whether "there is no practicable alternative" to keeping him in custody is a jurisdictional fact, which, on an application for judicial review and a writ of habeas corpus, must be proved objectively as a condition precedent to giving the direction contemplated by s 269V(2)(b) of the CLC Act and that it is for the court to determine whether that jurisdictional fact exists: see Chattaway at [11].
74 At [36] Stanley J (with whom Kourakis CJ and Peek J agreed) did not accept that s 269V(2)(b) of the CLC Act evinces a legislative intention that the fact that there is no practicable alternative to prison is an objective jurisdictional fact. His Honour continued:
While I accept it is a fact that conditions the giving of the direction, the concern of the Court is confined to whether the Minister, or his or her delegate, held the opinion that in the applicant's case there was no practicable alternative to keeping him in custody in prison. However, while it is necessary to prove that the Minister, or his or her delegate, held that opinion, that is not sufficient. The Minister, or his or her delegate, must have formed that opinion reasonably on the material before him or her.
75 Similarly the High Court in AJL20 observed that the Minister must have a rational basis for determining what is reasonably practicable for the purposes of the relevant sections pursuant to which a non-citizen could be detained. Here the same must apply. That is the Minister or his delegate must have formed a view reasonably based on the material before him that it is practicable to give the notice and invitation under s 501CA(3) of the Act. That is not a jurisdictional fact to be determined by the Court.
76 Finally, underpinning the appellant's submissions in relation to the construction for which he contends is a contention that the Court should, in determining the proper construction, avoid objective unfairness. However, the question of fairness is not a matter that can displace the determination of the proper construction based on the text, context and purpose of the provision in question. In Australian Education Union v Fair Work Australia (2012) 246 CLR 117 at [28] French CJ, Crennan and Kiefel JJ noted that the applicant, the Australian Education Union, pointed to the unfairness of the construction adopted by a Full Court of this Court of the legislative provision in question in that case. In considering that contention their Honours said (at [28]):
Considerations of fairness at this level of particularity are not of great assistance in the construction of a statutory rule with general application. It may be accepted that "justice" and "fairness" denote values underpinning the common law approach to the construction of statutes affecting pre-existing rights and obligations.
At [32] their Honours noted that:
While "fairness" and "justice" denote values underlying the relevant common law principles, it is neither necessary nor desirable, as a general rule, that the task of construction be mediated by broad evaluative judgments invoking that terminology. They carry the risk that the courts may then exceed their proper constitutional function. It is sufficient to focus upon the constructional choices which are open on the statute according to established rules of interpretation and to identify those which will mitigate or minimise the effects of the statute, from a date prior to its enactment, upon pre-existing rights and obligations.
77 While the Minister accepts, and it is the case, that the general purpose of s 501CA(3) of the Act is to give the person whose visa has been cancelled a real opportunity to make representations about revocation of the cancellation decision, that general purpose cannot be a substitute for an analysis of the text of the provision: see Walker v Members Equity Bank Ltd (2022) 295 FCR 225 at [105]-[106] (Wigney J, with whom Lee and Abraham JJ agreed).
78 The text of s 501CA(3) of the Act is clear. As the Minister submits, the assessment of whether and when it is practicable to give a notice and invitation in conformity with the requirements of the section focusses only on when it is practicable or feasible for the Minister to send the communication. It does not require the Minister to assess whether the person receiving the notice understands it or has the capacity to do so. That was also the conclusion reached by the primary judge (at [74] of BIF23). Her Honour was correct to do so.
79 Ground 1 is not made out.