Minister for Home Affairs v Aciek

1. The appeal is permanently stayed.
2. There is no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The Appellant in the present proceeding is the Minister for Home Affairs. The Respondent, who is a citizen of South Sudan, is Mr Aciek Akec Aciek. 2 Mr Aciek was granted a Class XB Subclass 202 Refugee and Humanitarian (Permanent) visa in February 2004. In May 2014 he was convicted in the District Court of South Australia of a number of offences. He was sentenced to imprisonment for a period of almost five years with a non-parole period of two years and two months. 3 By letter dated 22 February 2016, he was informed that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth). The letter, referred to as a "Cancellation Notice", was expressed to be given under s 501CA(3) of the Act. As at that date, Mr Aciek was in prison in South Australia. 4 The circumstances in which the 22 February 2016 cancellation letter was given to Mr Aciek is said to assume relevance. The 22 February 2016 letter is unsigned, although the author of the letter is identified by a Position Number. That letter, however, was forwarded by a Case Manager (Ms Simone Dillon) by way of email on 22 February 2016 to what were referred to by the Appellant as "the appropriate authorities in South Australia". The email attached the "cancellation documentation" and emphasised that it was "important that the full documentation is provided to Mr ACIEK without delay". An email from a Case Management Coordinator (Mr Michael Guyan) at the prison on the same day, however, stated that the Coordinator sought to serve Mr Aciek "today" but that Mr Aciek "refused to accept the documents when offered … and also refused to sign the acknowledge receipt". Neither the Case Manager nor the Case Management Coordinator held delegations under s 501CA. 5 On 11 September 2017, Mr Aciek filed an Originating Application in the Federal Circuit Court of Australia challenging the validity of the Cancellation Notice. 6 In December 2017, a Judge of the Federal Circuit Court concluded (inter alia) that it was reasonably arguable that the Departmental Officer (Ms Dillon) who sent Mr Aciek the 22 February 2016 letter "did not act as the agent of the Minister" and that it was "reasonably arguable that the Cancellation Notice did not constitute the giving by the Minister of a notice required by s.501CA(3) of the Act": Aciek v Minister for Immigration and Border Protection [2017] FCCA 3237 at [65] to [66], (2017) 327 FLR 412 at 431. The primary Judge concluded that the Cancellation Notice was "not a notice that was given in accordance with s.501CA(3) of the Act" with the consequence that "there was in law no notice given to the applicant under s.501CA(3) of the decision to cancel the Applicant's Visa, and that there remains unperformed the obligation specified in s.501CA(3) of the Act that accrued when the Applicant's Visa was cancelled on 16 February 2016": [2017] FCCA 3237 at [75], (2017) 327 FLR at 433. Declaratory relief was granted as to the invalidity of the Cancellation Notice and an order made (Order 3) requiring the Minister to "do that which s.501CA(3) of the Act requires the [Minister] to do in relation to the decision made by the [Minister] on 22 February 2016 to cancel [Mr Aciek's] Visa". 7 On 4 January 2018 the Minister, in compliance with Order 3 as made by the primary Judge, caused Mr Aciek to be given a further notice under s 501CA. Mr Aciek provided submissions in favour of revocation on 6 February 2018. A delegate of the Minister refused to revoke the cancellation by way of a decision on 26 April 2018. It was common ground in this Court that that delegate held a delegation under s 501CA. An application for review of the delegate's decision was then filed with the Administrative Appeals Tribunal and that Tribunal on 19 July 2018 affirmed the delegates' decision. 8 Intervening in these events was the filing of the Notice of Appeal to this Court on 1 February 2018. It is concluded that the appeal should be permanently stayed.