Is the second criticism made out?
65 At the heart of Mr Nguyen's submissions is the proposition that the treatment of a notice of withdrawal as effective is "conduct preparatory to the making of a decision" within the meaning of s 474(3)(h) of the Migration Act and is therefore a decision for the purposes of s 474(2). In effect, Mr Nguyen contends that Thomas J took a narrow view of the term "decision" by reason of his reliance on NACO which was determined under the ADJR Act.
66 In considering the issue that arose in Gillera Thomas J was aware of the definition of decision under the Migration Act. At [11]-[16] his Honour referred to the relevant statutory regime under the Migration Act and at [22] he noted expressly that "what constitutes a 'decision' under the Migration Act is broad and includes 'doing or refusing to do an act or thing'", referring expressly to s 474(3) of the Migration Act. At [25] Thomas J noted the way in which the appellant in that case characterised the conduct as a "decision" by: refusing to do an act or thing, in the case of refusing to consider what the appellant asserted was a valid visa application; and by positively doing an act, in the case of concluding that the partner visa application was withdrawn.
67 Mr Nguyen relies on two decisions to support his contention, both of which can be distinguished.
68 The first is SZSSJ which concerned two appeals heard together, one brought by the Minister against SZSSJ and the other brought by the Minister against SZTZI. The two appeals raised the same issues. For present purposes it is only necessary to set out a summary of the factual background to the appeal brought by SZSSJ.
69 SZSSJ was taken into immigration detention upon expiry of his student visa. He applied for and was refused a protection visa. On 10 February 2014, at a time when SZSSJ had exhausted his rights to review of the decision to refuse him a protection visa, the Department, which was then known as the Department of Immigration and Border Protection, published a document on its website in which information was embedded which disclosed the identities of 9,258 applicants for protection visas who at the time were in immigration detention (Data Breach). The Department commissioned an investigation by KPMG into the Data Breach. An abridged version of KPMG's report was made available to affected applicants.
70 On 7 March 2014, after he had been informed by the Department of the data breach, SZSSJ commenced a proceeding in the Federal Circuit Court seeking declaratory and injunctive relief against the Minister and the Secretary of the Department. The Federal Circuit Court dismissed the application for want of jurisdiction. SZSSJ appealed successfully to a Full Court of this Court which held that the Federal Circuit Court had jurisdiction and remitted the matter for its determination.
71 In the meantime, on 1 October 2014, the Department informed SZSSJ that it had commenced an international treaties obligations assessment (ITOA) process to assess the effect of the Data Breach on Australia's non-refoulement obligations in relation to him. SZSSJ was invited to provide any information he wished to have taken into account as part of that process and was given further information about the procedure and the consequences of a conclusion that Australia's non-refoulement obligations were engaged. On 23 December 2014 the Department again wrote to SZSSJ enclosing country information proposed to be taken into account in the ITOA process and inviting a response within 14 days.
72 While the ITOA process was ongoing the Federal Circuit Court heard and determined the remitted matter. It dismissed the proceeding on the basis that it was not satisfied at that time that SZSSJ had been denied procedural fairness and was not satisfied that SZSSJ faced a realistic threat of sudden removal while the ITOA process was ongoing. SZSSJ appealed to a Full Court of this Court where he was successful.
73 One of the issues raised before the High Court was whether the jurisdiction of the Federal Circuit Court was excluded by s 476(2)(d) of the Migration Act. At [63] the High Court observed that the issue was whether an ITOA conducted by an officer of the Department answered the description of a privative clause decision in s 476(2)(d) of the Migration Act or purported privative clause decision in s 474(4). In relation to that issue, at [66]-[70] the High Court said:
66 Subject to s 476(2)(d), the claims to declaratory and injunctive relief made by SZSSJ and SZTZI engaged the jurisdiction of the Federal Circuit Court under s 476(1). That was because, the Minister having made a procedural decision to consider whether to grant a visa or to lift the bar in the exercise of one or other of the powers conferred by ss 48B, 195A and 417 of the Act, the conduct of an ITOA by an officer of the Department met the definition of a "privative clause decision" in s 474(2). The conduct of the officer met that definition by reason of the extended definition of "decision" in s 474(3)(h). The conduct of an ITOA by an officer of the Department is conduct under the Act preparatory to the making of a substantive decision by the Minister - specifically, it is the holding of an inquiry or investigation.
67 To conclude that the jurisdiction so engaged is excluded by s 476(2)(d), it would be necessary to read the same extended definition of "decision" in s 474(3)(h) into the reference in s 474(7) to "a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power", relevantly under s 48B, s 195A or s 417.
68 The structure of s 474 is against that reading. The section is more naturally read sequentially: s 474(3) serving to spell out an extended meaning of the generic term "decision" for the purpose of the operative expression "privative clause decision", and s 474(7) serving the distinct and specific function of clarifying that operative expression to include specified statutory decisions of the Minister. None of the other paragraphs of s 474(3) can sensibly be read into s 474(7), and s 474(3)(h) should be treated no differently. Section 474(3)(h) for that textual reason should not be read into s 474(7). But even if it could, s 474(3)(h) as read into s 474(7) could not sensibly be read as encompassing conduct other than that of the Minister.
69 The reference in s 474(7) to a decision of the Minister not to exercise the Minister's power is properly read as limited to a substantive decision made by the Minister personally not to exercise one or more non-compellable powers. The reference to a decision of the Minister not to consider the exercise of the Minister's power is limited to a procedural decision made by the Minister personally not to consider whether to make a substantive decision. Neither reference is apt to encompass conduct of an officer of the Department preparatory to the making of a decision by the Minister.
70 Operating by reference to s 474(7) so construed, s 476(2)(d) excludes the jurisdiction of the Federal Circuit Court in a matter in which the relief sought is founded in a claim that a decision made by the Minister personally not to exercise or not to consider whether to exercise a non-compellable power is affected by jurisdictional error. Section 476(2)(d) does not exclude the jurisdiction of the Federal Circuit Court in a matter in which the relief sought is founded in a claim that an officer of the Department has failed to observe an implied limitation on his or her statutory power in holding an inquiry or conducting an investigation to inform the Minister as to the making of a substantive decision after the Minister has made a procedural decision.
74 The procedure considered by the High Court in SZSSJ, an ITOA, is to be contrasted with the procedure for withdrawal of a visa application. SZSSJ concerned the exercise by the Minister of the non-delegable power under s 48B of the Migration Act by which the Minister may determine that s 48A does not apply to prevent an application for a protection visa made by a non-citizen. The ITOA prepared by an officer of the Department was conduct that was preparatory to the making by the Minister of that substantive decision under the Migration Act. It was an inquiry or investigation. There was no analogous step in Gillera. There was no inquiry or investigation or other step that could be described as preparatory to the making of a decision by the Minister or his or her delegate, being the approval or refusal of the partner visa application.
75 Secondly, Mr Nguyen relies on EFX17. In that case by letter dated 3 January 2017 the Minister notified the appellant that he had cancelled his visa under s 501(3A) of the Migration Act. The letter was handed to the appellant on 4 January 2017 while in jail by an officer of the Queensland Department of Corrective Services. The appellant signed and dated an acknowledgement of receipt of the letter in the presence of the officer who handed him the letter. The appellant was illiterate and did not speak good English. There was also evidence before the Court that he was confused about the cancellation notice and that he had been diagnosed as having a schizophrenic illness.
76 Section 501CA(3) requires that as soon as practicable after making a decision under s 501(3A) of the Migration Act the Minister must give the person, in the way that the Minister considers appropriate in the circumstances, a written notice setting out the cancellation decision and "particulars of the relevant information" and invite the person to make representations to the Minister, within the period and in the manner set out in the regulations, about revocation of the cancellation decision. The appellant failed to seek revocation of the cancellation decision within the time prescribed.
77 Justice Greenwood summarised the appellant's argument at [13]-[15]:
13 The appellant says that in discharging the obligation to give notice of the cancellation decision and particulars of the relevant information, in the way the Minister considers appropriate, the Minister is required to reach that state of considered "appropriateness", "in the circumstances", as the statute requires. Those circumstances are said to include factors called the "capacity matters" which are said to be the "characteristics and individual circumstances" of the person to whom the written notice and particulars are to be given, which may affect the individual's "capacity to receive, read, understand and make representations in response to the notice". The capacity matters are said to include such things as the recipient's literacy, capacity to understand English, mental capacity and health, and, if in custody, the facilities available to the individual in custody to enable that person to understand the notice and particulars.
14 The appellant says that the act of the delegate of sending the Corrective Services officers a cancellation letter addressed to the appellant attaching the nominated enclosures (for hand delivery to the appellant) with an instruction to secure the appellant's signature on the acknowledgement form, fails to discharge the Minister's obligation under s 501CA(3)(a)(i) and (ii), having regard to the circumstances of the appellant and the capacity matters said to inform the scope of the duty.
15 As to the invitation required to be made to the appellant by reason of s 501CA(3)(b), the appellant says that the invitation must be "real and meaningful" and in discharging the mandatory obligation to invite the appellant to make representations about revocation, the invitation must, it is said, take into account the capacity matters specifically relevant to the appellant in "formulating the substance of the invitation; and determining how the invitation was to be given".
78 On appeal, as he did before the Federal Circuit Court, the Minister contended that the Federal Circuit Court did not have jurisdiction to determine the question agitated before that court because, as described at [20] by Greenwood J, the cancellation decision "was not under challenge on any ground of jurisdictional error and the contended failures on the part of the Minister or his delegate to discharge the s 501CA(3) obligations were simply 'procedural steps' or 'steps along the way' to a possible decision to revoke the cancellation decision (or not revoke it) under s 501CA(4) if the relevant decision-making contemplated by that subsection ever became engaged by reason of representations having been made within the period, and in the manner required, by the Regulations".
79 Mr Nguyen relies in particular on the reasons of Rares J in EFX17. At [166] his Honour held that the Federal Circuit Court did have jurisdiction because:
… the appellant sought a writ of mandamus in relation to the conduct of the Minister or an officer of his Department under s 501CA(3) of the Migration Act 1958 (Cth) to require the Minister to give the appellant a written notice, particulars and an invitation in the manner that the section specified preparatory to the Minister making a decision under s 501CA(4). That conduct consisted of the failure of the Minister or officer to give the appellant an invitation in accordance with s 501CA(3)(b).
80 After referring to SZSSJ, Rares J said at [168]-[170]:
168 Here, the process of carrying out the obligations that s 501CA(3) imposed, following the making of the decision under s 501(3A), necessarily involved the Minister or an officer of his Department, being an officer of the Commonwealth, within the meaning of s 75(v) of the Constitution. The valid or invalid performance of the function or duty under s 501CA(3) complained of was conduct preparatory to the Minister making a decision under s 501CA(4). Just as the Minster [sic] could not have been compelled to make a decision after the completion of an ITOA in SZSSJ 259 CLR 180, so too, here, he may never have to make a decision, if after the steps mandated in s 501CA(3) have occurred validly, the person whose visa had been cancelled does not make representations in accordance with s 501CA(3)(b). …
169 Here, compliance with s 501CA(3) can only occur if the Minister or an officer of the Department carries out the steps in compliance with what the section mandates. Those steps are both preparatory and essential to, first, enabling a person in prison whose visa has been cancelled under s 501(3A) without any natural justice to seek revocation of the decision to cancel it and, secondly, the enlivening of the Minister's power to act under s 501CA(4), if the person makes representations in accordance with a validly given invitation under s 501CA(3)(b).
170 The appellant sought a writ of mandamus to compel the Minister or an officer of his Department to perform his obligations under s 501CA(3) by engaging in conduct preparatory to, and for the purpose of, the Minister making a decision under s 501CA(4). That conduct was a "privative clause decision" within the meaning of s 474(3)(h) and thus, the appellant's claim to compel the proper performance of the Minister's or officer's duty or function under s 501CA(3) by a writ of mandamus was within the jurisdiction of the Federal Circuit Court.
81 In contrast to the position in EFX17, there was no notice requirement in Gillera. A withdrawal of a visa application is made by the visa applicant by written notice given to the Minister. No obligation falls on the Minister or his or her delegate to take any step prior to the giving of such a notice, nor could there be given that the decision to withdraw is one for a visa applicant.
82 Mr Nguyen has not made out his second criticism of Gillera.