The circumstances of the cancellation decision and the s 501CA(3) matters
92 A preliminary question is whether the primary judge erred, as the Minister contends, by admitting into evidence the affidavit of Ms Blaber affirmed on 19 September 2017.
93 Ms Blaber is the Principal Casework Solicitor at PLS acting on behalf of the appellant. The affidavit exhibits documents relating to the notice of cancellation of the appellant's visa and details of PLS's communications with both the appellant and the respondent concerning the notice of cancellation. The Minister says that Ms Blaber's affidavit was wrongly admitted because, it is essential to start with the material which was before the Minister; any new material is irrelevant; and, evidence of the manner in which the appellant received the documents, and evidence of what transpired directly as a result of receipt of the documents by the appellant, including his understanding and appreciation of the contents of the notice (and presumably the other documents given to him on 4 January 2017), is also irrelevant. The Minister also says that the affidavit duplicates much of the material already in the Appeal Book in any event. To the extent of any duplication, the appellant accepts that criticism. It should be noted that although the Minister challenges the admissibility of the affidavit, the Minister made brief references to material in it in oral submissions in any event.
94 The primary judge admitted Ms Blaber's affidavit as relevant and admissible to the extent that the affidavit seeks to record the manner in which the appellant received the notice of the cancellation of his visa; as to the appellant's acknowledgement of the receipt of the notice; and, as to the events that transpired "directly as a result of such receipt".
95 To the extent that the affidavit duplicates material already in the Appeal Book, the material is before the Court in any event. To the extent that the affidavit goes to facts relevant to the question of whether the Minister's delegate discharged the obligations contained in s 501CA(3)(a) and (b) of the Act, the affidavit is properly admitted.
96 On 23 December 2016, Ms Bowdern, a Sentence Planning Adviser within "Sentence Management Services" of the Department of Corrective Services sent an email to "Queensland Prison Parole Liaison" and "Police Liaison Qld" (which seems to liaise with the NCCC within the Department of Immigration and Border Protection), advising that the appellant was in custody at the Brisbane Correctional Centre serving a seven year term of imprisonment with a full-time release date of 13 August 2021 and a parole eligibility date of 19 December 2016. Ms Bowdern asked whether the appellant was "of interest to your department due to information received that the prisoner was born in Afghanistan".
97 On 29 December 2016, Queensland Prison Parole Liaison (Mr Leung), sent an email to the NCCC asking for urgent advice as to whether the appellant "is liable for consideration for cancellation in terms of the s 501 Legislation".
98 On 29 December 2016, the NCCC responded advising that the appellant was of interest to the Department "for mandatory visa cancellation". The author of that email noted that the appellant's parole eligibility date had passed and asked whether the Parole Board had determined when the appellant would be released on parole.
99 On 3 January 2017 (15:35AEST), the Minister's delegate signed a Decision Record for the purposes of s 501(3A) of the Act in which he records this:
Because I am satisfied that the visa holder meets the requirements of sections 501(3A)(a) and (b), I am satisfied that the visa holder is liable for mandatory cancellation under section 501(3A) of the Migration Act 1958 and therefore I must cancel their Class XA Subclass 866 Refugee visa granted on 16 December 2009.
100 On 3 January 2017 (2:51pm), the same delegate who had made the cancellation decision sent the email set out at [7] of these reasons to the Brisbane Correctional Centre, Sentence Management Services, copied to the Queensland Parole Board at the Department of Corrective Services. The subject was the "Notification of s 501 visa cancellation" and the email attached documents described as "Notice of mandatory visa cancellation.pdf; Mandatory Cancellation Notification Package - version 07.06.16.pdf".
101 As indicated in the email quoted at [7], the delegate requested someone within Sentence Management Services at the Brisbane Correctional Centre provide the attached cancellation documentation to the appellant and emphasised that it was important to provide the full documentation to the appellant without delay having regard to the limited period of time within which the appellant would be entitled to apply for revocation of the visa cancellation decision. Particular emphasis was given (as set out in the top section in bold in the email as quoted at [7]) to having the appellant complete the "acknowledgement of receipt" at page 6 of the letter dated 3 January 2017 enclosed within the collection of papers making up the attachments to the email.
102 The letter sets out the grant of the visa on 16 December 2009; the elements of s 501(3A); the basis upon which the appellant is said to have failed the character test: pages 1 and 2. Attachment 1 to the letter sets out the full text of s 501 including s 501(3A), s 501(6) and s 501(7) consisting of 11 pages of statutory text. The letter tells the appellant that his visa has been cancelled and that he no longer holds a visa. He is told that additional information is set out in Attachment 2 which explains the consequences of the cancellation.
103 Attachment 2 is described as "General Information s 501(3A)". It is a one page sheet which explains the cancellation of the visa, the prohibition upon applying for other visas, the proposition that the appellant is subject to removal from Australia and as to "what happens next?", the information sheet says that if the appellant decides to "request revocation of the cancellation decision he should complete and return the attached Request for Revocation of a Mandatory Visa Cancellation under s 501(3A) within the specified time period".
104 Another document described as "Frequently Asked Questions - Mandatory Cancellation" also forms part of Attachment 2. One of the questions is: "I don't want to leave Australia, what do I do?" The answer is: "When you are advised of a mandatory cancellation you will receive information about how to apply for a revocation of the cancellation decision. If you wish to seek revocation it is very important you do so within the stated timeframe (28 days)". Another question is this: "What if I haven't applied for revocation of my visa cancellation within the stated timeframe (28 days)?" The answer is this: "If you have not applied for revocation within the stated timeframe you lose the opportunity to apply and will be removed from Australia at the earliest opportunity. You may apply to the courts if you believe there has been a legal error in the decision to cancel your visa."
105 The questions above and set out below are in bold in the document. The document also contains the following questions and answers on the topic of revocation:
Q. Can I appeal a mandatory decision to cancel my visa? What is a "revocation"?
A. You may seek revocation of a mandatory cancellation decision from the Department, but the cancellation itself cannot be appealed. The effect of a decision to revoke is to "reverse" the mandatory cancellation decision and reinstate your visa. Revocation will only be considered at your request within the set timeframe. You will be notified in writing of any decision to revoke or not revoke your mandatory visa cancellation.
Q. What kind of information will be the Department ask for when deciding whether or not to revoke my mandatory cancellation?
A. The Department will ask for information relating to your personal circumstances, such as whether you have any children or family in Australia, whether you have ties to the Australian community, and any court, prison or parole reports. If you seek revocation of your cancellation decision, you will be advised what information to provide. The Department may request that you provide further documents, however, the Department may make a decision on your revocation request based on only the information that you provide. Therefore you must take care to provide all relevant information and evidence about your circumstances.
Q. How long after I apply for revocation will it be before a decision is made?
A. We aim to make a revocation decision as soon as possible after receiving a complete revocation request however constantly adjusting priorities within the National Character Consideration Centre mean it is not possible to be specific regarding timeframes.
106 In the list of enclosures at page 5 of the letter of 3 January 2017, Attachments 1 and 2 are the last two documents in a package of documents which seems to comprise the material at page 50 of the Appeal Book through to page 136 (approximately 86 pages). The "Frequently Asked Questions" pages are the last three pages in the bundle.
107 In the body of the letter, the delegate says this about the possibility of revocation:
Opportunity to seek revocation of the cancellation decision
While your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations about revoking the decision to cancel your visa.
You are hereby invited to make representations to the Minister about revoking the decision to cancel your visa. The representations must be made in accordance with the instructions outlined below, under the headings entitled "How to make representations about revocation of the decision to cancel your visa" and "Timeframe to make representations about revocation".
The decision to cancel your visa may be revoked by the Minister under s 501CA(4) of the Act if you make representations in accordance with the specified instructions and the Minister is satisfied that:
• you pass the character test (as defined by s 501 of the Act); or
• there is another reason why the decision to cancel your visa should be revoked.
The full text of s 501CA of the Act is also included in Attachment 1.
How to make representations about revocation of the decision to cancel your visa
If you decide to make representations about the revocation of the decision to cancel your visa, you can write to us using the attached Revocation Request Form.
Under s 499 of the Act which permits the Minister to issue written directions about the exercise of powers under the Act, the Minister has issued Direction 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA which identifies issues that are relevant to the revocation consideration. A copy of Direction 65 is enclosed for your information. You should address each paragraph in PART C of the Direction that is relevant to your circumstances.
Please note that if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa.
…
Your representations must be in writing and in English, or if in a language other than English, accompanied by an accurate English translation (see Regulation 2.52 of the Migration Regulations 1994 ("the Regulations"), a copy of which is included in Attachment 1.
Time-frame to make representations about revocation
Any representations made in relation to the revocation of a mandatory cancellation decision must be made within the prescribed timeframe. 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.
If you make representations about revocation of the visa cancellation decision but the representations are received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider the representations because they would not have been made in accordance with the invitation, as required by s 501CA(4)(a) of the Act.
Lodging the Revocation Request Form.
If you decide to make representations to the Minister to revoke the mandatory cancellation of your visa, it is essential that you complete and lodge the Revocation Request Form within 28 days after you are taken to have received this notice as this timeframe cannot be extended.
If, following lodgement of the Revocation Request Form within the 28 day period, you wish to provide additional information, you may do so. Provided the additional information is received before a decision whether or not to revoke the cancellation is made, the additional information will also be taken into consideration in making the revocation decision.
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.
Where to send your representations about revocation
Your representations (as made in the completed Revocation Request Form) may be sent by mail, email or fax.
[The letter then sets out the postal address, email address and fax number]
Contacting the processing officer
If you have any queries about this notice, you can contact them by fax or email using the details above. You are free to show these documents to someone you think may be able to help you.
108 Although 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 and attached documents consisting of the Mandatory Cancellation Notification Package was not sent to the appellant by email but rather, sent by email to an Officer of the Brisbane Correctional Centre located in the Sentence Management Services area of the Department of Corrective Services, with a request from the delegate that the cancellation notice and related documents be given to the appellant "without delay" and with an emphatic (in the sense of emphasised in bold as the opening paragraph of the email) request that the officer have the appellant complete the acknowledgement of receipt page at the end of the 3 January 2017 letter and return a copy of it to the office of the NCCC.
109 It is important to remember at this point in the chronology that the appellant, who is about to be handed approximately 86 pages of documents in English by officers of the Department of Corrective Services, is in prison having been a client of the Prison Mental Health Service since incarceration in August 2014. Historically, he has been suffering from a schizophrenic illness due to substance abuse and life threatening traumatic events at the hands of Taliban soldiers. He is truly "illiterate" in the sense that he cannot read or write in his own language having received no schooling in Afghanistan and has "extremely limited English-speaking capabilities": see [5] of these reasons.
110 At para 4 of Ms Blaber's affidavit she says that PLS had a number of discussions with the appellant concerning the cancellation of his visa. Ms Blaber says that in respect of each communication she either spoke with the appellant herself or gave instructions to a staff member of PLS to engage with the appellant about aspects of the cancellation of his visa. Ms Blaber says that in connection with these matters, she has considered the documents produced to her at Annexure A to Annexure P of her affidavit. Annexure N to her affidavit is a copy of the Queensland Corrective Services Integrated Offender Management System (IOMS) case notes. As to those case notes, the following matters are noted in the document.
111 On 4 January 2017, the appellant was seen in unit S15 to deliver to him "his visa cancellation". The case note records that also in attendance were "Gabby James (SMS training), Narelle O'Brien (OD) and Jennifer Rose (OD, training)". It is not clear who is the author of the case note. However, the entry for 4 January 2017 says this:
I provided the prisoner with his information pack and advised:
- That his protection visa has been cancelled under s 501 of the Migration Act.
- The reasons are due to his substantial criminal record and he is serving a full-time term of imprisonment
- He can request a revocation of the cancellation by writing to ABF within 28 days.
The prisoner advised that he can understand English while talking, but cannot read or write well. He also advised that he wishes to leave Australia and will not be seeking a revocation of the cancellation.
The prisoner is eligible for parole and requested a parole application. This has now been sent to him via internal mail.
Narelle O'Brien is organising a phone call or visit from PLS to assist the prisoner in completing his parole app and to discuss the option of requesting a revocation of the visa cancellation.
Nil issues arose at the time of delivery.
[emphasis added]
112 There is a second and longer entry also for 4 January 2017. It seems to be concerned with an assessment of the appellant and it seems to be consequent upon the earlier events noted above. The third entry is in these terms:
Prisoner [appellant] was assessed in the S15 interview room for the purpose of a Visa Cancellation Notification. Present was A. Ryan (SMU) and J. Rose Snr Psychologist.
Prisoner [appellant] presented to the interview willingly and was polite and compliant during the interview. He reported that he had previously been advised by Katrina at Prisoner Legal Service whilst accommodated at AGCC that his visa would likely be cancelled and he would be deported. Prisoner [appellant] has limited English language abilities and expressed concern with reading and understanding the deportation documentation provided to him during the interview. He requested assistance from another prisoner currently accommodated in S18 and Prisoner Legal Service as he has limited external support in the community. A special phone call was requested and permission sought for Prisoner to receive assistance from his peer in S18.
Prisoner [appellant] maintained appropriate eye contact and there was no evidence of current active mental illness or gross mood disturbance at the time of the interview. He reported a history of perceptual disturbance (auditory hallucinations) however stated he does not experience these at present. Thought processes were organised during the assessment. Prisoner [appellant] reported sleep disturbance resulting from "bad dreams". He reported he is currently medication compliant however requested a medication review to assist him with his sleep. Email sent to QHealth.
Officer Ryan explained the options of Revocation and Detention Centre processes. Prisoner reported that he wanted to return to Afghanistan to be closer to his family as he was unhappy in Australia with "all the rules". He is currently eligible to submit a parole application and SMU will provide him with the relevant documents.
IOMS documents and S/DSH history for prisoner [with details of multiple self harm attempts identified, the particulars of which do not need to be recited in these reasons]. During the interview Prisoner [appellant] denied any current S/DSH ideation, intent or plan stating "I haven't been thinking that way for a long time". He denied any additional stressors and was receptive to receiving further assistance if needed.
[emphasis added]
113 The IOMS case notes as quoted at [112] reveal that "A Ryan" was present at the meeting with the appellant in the S15 interview room for the purpose of notifying the appellant of the visa cancellation decision. The "acknowledgment of receipt" document is signed and dated by the appellant on 4 January 2017. The document is also signed "A Ryan" next to "Name of Corrective Services Officer".
114 Although the documents were given by the Corrective Services Officer to the appellant, the IOMS case notes do not record that an interpreter was available so as to explain the documents to the appellant and in particular the letter giving written notice of cancellation of the visa. The case notes for 4 January 2017 show that the appellant expressed concern with "reading and understanding the deportation documentation provided to him during the interview" and although he requested assistance from another prisoner in S18 and from the Prisoner Legal Service, there is no record in the IOMS case notes of assistance being provided either from another prisoner or the PLS. The case notes recite that a "special phone call" was requested by the appellant and permission was sought by him to receive assistance from a prisoner in S18. However, there is no record of a special phone call having been made available to the appellant or support having been received from the prisoner referred to in the notes (although not by name). There is no record in the case notes of steps being taken to contact the Prisoner Legal Service. The case notes recite that the appellant "has limited English language abilities".
115 The events which occurred on and after 4 January 2017 are relevant at least to the question of whether the appellant had any understanding that documents bringing about the cancellation of his visa had been handed to him in the S15 interview room on 4 January 2017.
116 On 6 January 2017 the PLS spoke with the appellant using a Hazaragi interpreter. The PLS asked the appellant whether he had received any notices from the Department of Immigration and Border Protection. The appellant told the PLS that he had not received any correspondence from the Department about his visa. Ms Blaber says that the appellant did not say that he had received a notice of cancellation of his visa from anyone. On 6 January 2017 the PLS obtained instructions from the appellant to lodge a request for revocation of cancellation of his visa once he had received notice of a visa cancellation from the Department.
117 On 31 January 2017 the PLS sent an email to "Qld Prison Parole Liaison" and to the Department's s 501 Revocation mailbox advising that Ms Blaber was acting on behalf of the appellant as his migration agent/lawyer attaching the relevant appointment document (Form 956). Also on 31 January 2017, PLS sent an email to the Department of Immigration and Border Protection, FOI Branch, requesting access to documents relating to the appellant held by the Department. The email attached a request in accordance with Form 424A duly signed by the appellant. By that form, the appellant and Ms Blaber sought access to "all documents correspondence and audio recordings on my immigration file". The form acknowledges Ms Blaber's appointment to act on behalf of the appellant in relation to the matter.
118 On 2 February 2017 PLS again spoke to the appellant using a Hazaragi interpreter. The appellant was again asked whether he had received any documents or correspondence from the Department. The appellant told PLS that he had not received any documents or correspondence from the Department. The PLS representative advised the appellant that if he were to receive any documents or correspondence from the Department, he should tell PLS about that as soon as possible.
119 On 3 February 2017 Ms Blaber received a letter by email from the Department mistakenly dated 3 February 2016, in response to the FOI request of 31 January 2017 for access to documents. In that letter, the author, Ms Beecroft explains that the request had been refused due to the broad terminology of the request on the footing that it did not "reasonably identify the documents you are requesting and can also be considered as substantially and unreasonably diverting the resources of this agency from its other operations to process in its current state".
120 On 7 February 2017 the representative of PLS spoke with an officer of the department within the Department's FOI Branch. The officer advised the PLS that the appellant "may have already been sent a notice of visa cancellation". Ms Blaber says in her affidavit that the officer stated that it was "unclear whether the notice had been issued to the applicant [appellant]" and advised the PLS to contact the NCCC for information.
121 On 7 February 2017, Ms Blaber revised the terms of her FOI request so as to seek access to "all documents, correspondence and audio recordings in relation to [the appellant's] protection visa application and visa cancellation".
122 On 7 February 2017 a representative of PLS spoke with an officer of the NCCC. The NCCC Officer acknowledged receipt of the Form 956 appointing Ms Blaber as the appellant's representative. The NCCC Officer advised the PLS that an email would need to be sent to the NCCC seeking confirmation as to whether the appellant had been "issued with a notice of visa cancellation".
123 On 7 February 2017, Ms Blaber sent an email to the NCCC following up that conversation. The "importance" of the email is described as "High". The email says this:
I refer to the above client and confirm that I act as his Migration Agent. I am writing to enquire whether my client has been issued with any recent correspondence relating to his visa.
Our office sent a 956 form to your office on 31 January 2017 which I understand was received by your office. I am concerned that our office may not have been provided with correspondence sent to our client. We spoke with the NCCC this afternoon who indicated correspondence had been sent to our client however I have not received any correspondence with the exception of a response to our FOI application.
Could this please be attended to as a matter of urgency.
Regards
HELEN BLABER
BA, LLB (Hons), GRADDIPLP
Principal Casework Solicitor
124 On 9 February 2017, Ms Blaber received an email from the "Decision Support Officer (Pipeline Management Unit, National Character Consideration Centre (NCCC)), Character Assessment and Cancellations Branch, Community Protection Division, Visa and Citizenship Services Group, Department of Immigration and Border Protection". The response to Ms Blaber's email was this:
Dear Helen
Form 956 has been received by the department, thanks for that. No correspondence has been issued recently to [the appellant] from NCCC.
Kind regards
Grace
Decision Support Officer
[Pipeline Management Unit etc, as described earlier]
125 On 1 June 2017, Ms Blaber received a letter from the Department's FOI Branch enclosing documents produced pursuant to PLS's amended FOI Application. The letter is dated 24 May 2017 and it may have been sent by email on 1 June 2017. The letter seems to be stamped as received on 1 June 2017. The documents produced include the notice of visa cancellation issued to the appellant in the form of the Department's letter to the appellant dated 3 January 2017. Ms Blaber says that prior to this date, PLS had not been provided with a copy of the notice of visa cancellation or informed in any way that the appellant's visa had been cancelled.
126 On 1 June 2017, Ms Blaber sent an email to the NCCC observing that on 7 February 2017 she had asked the NCCC to address the matters set out as quoted at [123]. Ms Blaber observed that, in the email of 9 February 2017 from Grace, the Decision Support Officer within the NCCC, the PLS had been told that "no correspondence has been issued recently to [the appellant] from the NCCC". Ms Blaber observed that having reviewed the documents received that day from the Department's FOI Branch, it was clear that a letter had been sent by the Department to the appellant as recently as 3 January 2017 (although it was actually handed to the appellant with the other documents on 4 January 2017). Ms Blaber also said that she had attempted to speak with the NCCC Officer without success and requested the matter of the cancellation notice to the appellant to be addressed urgently.
127 On 2 June 2017, the NCCC responded by email in these terms:
The client had been issued with a notice of cancellation on 3/01/2017 and he signed the acknowledgment of receipt of the same on 4/01/2017 (attached).
As stated by you in your email below that you were notified by "Grace", a decision support officer with the NCCC, that "no correspondence has been issued recently to [the appellant] from NCCC" is right as no notification was issued to him after cancellation. Your enquiry was not regarding his cancellation but to enquire whether the client has been issued with any recent correspondence.
128 Remarkably enough, the NCCC officer did not regard the correspondence given to the appellant on 4 January 2017 comprising the significant bundle of documents affecting the cancellation of his visa and potential deportation, as bearing the description "any recent correspondence" so far as the request made on 9 February 2017 about that matter, was concerned.
129 On 9 June 2017, Ms Blaber sent a letter of that date by email to the NCCC setting out much of the chronology described above. Aspects of this letter/submission have been mentioned earlier in these reasons. As to the difficulties confronting the appellant, apart from the matters quoted from the submission at [5] of these reasons, Ms Blaber made these observations:
All of PLS's communications with [the appellant], except for our first meeting with him, have been conducted through a NAATI-recognised Hazaragi interpreter. We advise that, even with the use of an interpreter, [the appellant] has had difficulties understanding our advice and instructions. This has been the case even when discussing simple topics and processes, such as lodging a parole application and finding approved accommodation. In our view, this reflects that his communication difficulties go beyond that of a language barrier and there are many other factors that impair his understanding. For example, he has been diagnosed with schizophrenia and has experienced significant trauma in Afghanistan, which we consider to have impacted his capacity to communicate effectively.
130 In the submission Ms Blaber acknowledges that the appellant signed an acknowledgment of receipt of the cancellation notice on 4 January 2017 and submits that in the absence of a Hazaragi interpreter the cancellation notice "was not effectively communicated to our client in a language he could understand and as such his signed acknowledgment is meaningless". Ms Blaber also observes that the PLS spoke with the appellant on 6 January 2017 and 2 February 2017 about his pending visa cancellation and whether or not he had received documents or correspondence from the Department. Ms Blaber observes that, in view of the appellant's statement that he had not received any paperwork from the Department, it seemed clear enough that the appellant had signed the acknowledgement form "without any understanding of its contents and implications". Ms Blaber made observations about the strength of the applicant's underlying case for revocation of the cancellation decision and urged the NCCC to reissue the cancellation notice and invitation contemplated by s 501CA(3)(a) and (b) so as to enable the appellant to "have the opportunity to request revocation".
131 On 15 August 2017, Ms Celler-Lacey, the Acting Assistant Manager of the Pipeline Management Unit of the NCCC within the Department responded to the request for re-notification to the appellant of the cancellation decision. Ms Celler-Lacey says that the Department has found that the notification to the appellant cancellation of his visa "was legally effective" and "[c]onsequently, there is no grounds for the Department to re-notify [the appellant] of the decision to cancel his visa under s 501(3A)".
132 The question that arises in the very specific and particular circumstances of this appellant is: did the Minister, by his delegate, discharge the mandatory obligation cast upon him by s 501CA(3)(a) to give the former visa holder written notice setting out the cancellation decision made in reliance upon s 501(3A)(a)(i) and particulars of the required "relevant information", as defined, by causing the letter of 3 January 2017 and the Mandatory Cancellation Notification Package - version 07.06.16 pdf, all in English, to be handed to the appellant by a Corrective Services Officer on 4 January 2017? That "way" of "giving" the appellant the required written notice and particulars of relevant information, might fall within the statutory description of "the way that the Minister [by his delegate] considers appropriate" (in s 501CA(3)(a) governing the description of the material in (a)(i) and (ii) of s 501CA(3)), but that state of considered appropriateness is conditioned by the phrase "in the circumstances".
133 It is not clear what "circumstances" the Minister's delegate took into account (or may have failed to take into account) in considering the way selected as "appropriate in the circumstances". However, the way selected, as appropriate, of giving written notice setting out the decision and particulars of the relevant information, by handing the appellant the material described at [132], was required to meet the irreducible minimum standard of actually giving the person written notice and the information comprehended by the defined term "relevant information". In other words, the person must "get notice". He must be "given notice", not just handed a suite of documents coupled with a sense of urgency being impressed upon the Corrective Services Officer to make sure that he or she secured the signature of the person on the "Acknowledgement of Receipt" page of the letter. The mandatory obligation is not one of "service". It is an obligation to "give notice". If the relevant person has no capacity to comprehend whatever it is that is given to, or served upon, him or her, which is said to satisfy the requirements of s 501CA(3)(a), it is difficult to see how it can be said that the Minister has discharged the obligation to "give" the relevant person "notice". The question is not simply whether the appellant physically received the documents but rather the scope or burden of the irreducible minimum standard cast upon the Minister by s 501CA(3) as a matter of statutory construction taking into account the relationship between s 501(3A) and s 501CA(3).
134 The circumstances that suggest that the appellant was simply not capable of comprehending the suite of documents handed to him at the Correctional Facility on 4 January 2017 (notwithstanding the virtue of his signature having been secured on the Acknowledgment Form) are these:
(1) The appellant is illiterate in the sense that he is unable to either read or write in his native tongue, Hazaragi.
(2) Consistent with that position, the appellant did not receive any schooling in Afghanistan or Iran apparently as a function of having been raised in a poor farming community in Ghazni Province and having later worked as a shepherd and child labourer in Iran.
(3) He has never learnt to read or write in English.
(4) He was taught how to sign his name when in immigration detention in Christmas Island in 2009. He has, however, participated in an introductory English language course focused on basic conversational English.
(5) Historically, the appellant has been a "client" (patient) of the Prison Mental Health Service since August 2014 having suffered from a schizophrenic illness (which Dr Schramm described in his report of 27 June 2017 as then currently under reasonable control with regular antipsychotic medication).
(6) There seems to be little doubt that the appellant's schizophrenic condition is at least in part attributable to traumatic events affecting him and his family at the hands of Taliban soldiers.
(7) The IOMS case notes for 4 January 2017 (see [111] of these reasons) note that although the appellant advised that he can understand English while talking, he cannot read or write well. The subsequent case note for 4 January 2017 notes that the appellant has limited English language abilities and expressed concern with reading and understanding the deportation documentation provided to him during the interview. Moreover, the case notes recognise that the appellant requested assistance from another prisoner and from the PLS as he had limited external support in the community. In addition, it seems that the appellant asked for a "special phone call" to be made and sought permission to receive assistance from another prisoner in the Correctional Facility. There is no suggestion that any assistance was available in the form of a special phone call or access to the other prisoner as requested. There is no suggestion in the case notes that an interpreter was available to explain the burden of the documents given to him and for which he duly signed on the acknowledgement page: see [112] of these reasons.
(8) On 6 January 2017 and 2 February 2017, a representative of the PLS spoke to the appellant using a Hazaragi interpreter. Although the appellant was asked on both occasions whether he had received any correspondence or documents from the Department, he told the PLS representative through the interpreter that he had not received any such material. These responses from the appellant on these dates suggest that the appellant had no comprehension or understanding of the fact that he had been given a suite of material by a Correctional Services Officer (which seems to be A Ryan) which constituted documents or correspondence from the Department or any division, section or group within the Department whether part of the "Pipeline Management Unit" or the "National Character Consideration Centre" or the "Character Assessment and Cancellations Branch" of the "Community Protection Division of the "Visa and Citizenship Services Group" of the Department of Immigration and Border Protection.
135 In the circumstances of this particular appellant, having regard to all of these factors set out at [134], the service upon the appellant of the suite of documents handed to him on 4 January 2017 in the Correctional Facility coupled with the urgency impressed upon the Correctional Services Officer to ensure that he secured the appellant's signature on the acknowledgement page so that there might be no doubt that the appellant had been given the suite of documents, does not meet the irreducible minimum standard of giving the appellant notice of the cancellation decision and the particulars of relevant information.
136 Apart from the obligation to give written notice of the decision and the relevant particulars, the Minister, by his delegate, was required to invite the person to make representations within the period and in the manner determined by the Regulations "about revocation of the original decision".
137 This obligation also reflects an irreducible minimum standard of ensuring that the appellant is invited to make representations about revocation. If the appellant, in the particular circumstances confronting him, was not capable of comprehending that the material handed to him on 4 January 2017 contained an invitation to make representations, within the time and in the manner determined by the Migration Regulations, which would have the effect of enabling him to put forward facts and circumstances which might satisfy the Minister that there is a reason why the cancellation decision should be revoked, service of the documents on 4 January 2017, having regard to the factors set out at [134], suggests that the invitation contained within the documents in English was not a real and meaningful invitation and thus, not an invitation for the purposes of the Act.
138 It is, of course, true that the appellant was served with a letter in English setting out the cancellation decision and identifying factors relevant to him as an individual and it is also true that the documents handed to him contained an invitation to make representations about revocation. The elements of those matters are set out at [102] to [108] of these reasons. However, having regard to the factors described at [134], giving the appellant those documents in that way and (by those documents), inviting the appellant to make representations about revocation did not discharge the obligations required of the Minister under s 501CA(3) in a real and meaningful way. Having regard to the factors at [138] as discussed more broadly in these reasons, the Minister's delegate could have taken steps to ensure that an interpreter skilled in the language of the appellant (Hazaragi) was made available to the appellant who was, of course, in custody and readily available to the Minister's delegate. Alternatively, the Minister's delegate might have taken steps to ensure that a representative of the PLS was available to the appellant when the documents were handed to him so that someone with an inquiring and analytical mind with the interests of the appellant at heart might have been able to take steps to protect the interests of the appellant. Alternatively again, the Correctional Services Officers who were asked to hand the 86 pages of material to the appellant, on behalf of the Minister's delegate, might have responded to the appellant's request to seek the assistance of his fellow prisoner who presumably had some capacity to engage with the appellant. However, the dominant emphasis of the Minister's delegate was to make sure that the Correctional Services Officers handed the 86 pages of material to the appellant and secured the appellant's signature on the acknowledgement of receipt form.
139 Two other factors of real importance should be mentioned. First, the appellant was, at the relevant time, in the control and custody of the Queensland Department of Corrective Services and was thus amenable to steps that might have been taken as described in [140] of these reasons. Second, the appellant was familiar to the Minister's departmental officers in the sense that he had been granted a protection visa as a result of those officers comprehensively considering whether the Minister could be satisfied that the appellant held a well-founded fear of persecution for a Convention reason. All of the relevant circumstances relating to that matter were known to the departmental officers and presumably as a matter of good government record-keeping, those officers had files and documents recording those matters. It must have been apparent to the Department either actually or inferentially that the appellant suffered special disadvantage.
140 It should also be noted that in the letter dated 3 January 2017, the delegate made observations about the timeframe available to the appellant for making representations about revocation. The relevant paragraphs under that heading are set out at [107] of these reasons. However, the point for present purposes is that the delegate, by his letter, was telling the appellant that the combined effect of s 501CA(3)(b) and s 501CA(4)(a) of the Act and Reg 2.52 is that any representations must be made "within 28 days after you are taken to have received this notice". The appellant was told that if representations about revocation were received "outside the prescribed timeframe of 28 days", the Minister or his delegate would not be able to consider those representations. Again, the appellant is told, in bold, that it is essential for him to complete and lodge the Revocation Request Form within 28 days "after you are taken to have received this notice" as the timeframe could not be extended.
141 The appellant says that these statements are both incorrect and incomprehensible to the appellant. They are incorrect because the Regulation does not talk about any construct such as "after you are taken to have received this notice". Regulation 2.52 applies to representations made to the Minister under s 501CA(3)(b) of the Act and it provides by Reg 2.52(2)(b) that the representations must be made "within 28 days after the person is given the notice and particulars of relevant information under paragraph 501CA(3)(a) of the Act" [emphasis added]. Regulation 2.52(2)(b) thus takes up the language of s 501CA(3)(a), which focuses upon the Minister's obligation to "give the person" the notice and particulars of relevant information with the result that the representations must be made within 28 days after the person is given those things.
142 The appellant says that the relationship between the text of Reg 2.52(2)(b) and s 501CA(3)(a) of the Act reinforces the notion that the question is not whether the appellant received physical documents but whether the Minister has discharged the statutory obligation of "giving notice".