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[2002] FCA 1113
respondent. The application was dismissed. The applicant was ordered to pay the respondent's costs.
The Court held that the Migration Act required the Department to take reasonable steps to tell a visa holder that cancellation was being considered, even though s 501 did not expressly say so. The Department sent letters to the address Mr Osborne had earlier said he planned to live at after prison, and where he did live for three months. Because those steps were reasonable, the fact that he did not receive the letters did not make the cancellation legally erroneous. The Court dismissed his application. It separately noted that the Minister's material wrongly said he had no child, but did not decide the effect of that mistake.
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2,316 words · generated 30/09/2026
Jason Deporis Osborne was a New Zealand citizen who entered Australia on 5 August 1994 and received a TY-444 Special Category Visa that allowed him to remain indefinitely ([1]). He had close family connections in Western Australia, including his mother and several siblings. He also had an Australian-citizen partner and a son, Matinga, born on 17 October 2001 ([1]).
2 cited instruments linked from this judgment.
Following criminal proceedings, Mr Osborne received an effective sentence of eighteen months with parole in November 1999, and a further sentence of fifteen months in March 2000 ([2]). While imprisoned, he was interviewed by a Department of Immigration and Multicultural Affairs officer on 27 July 2000. He said that, on release, he intended to live with his mother at 46 Koondoola Avenue and work with an uncle ([3]). He was released on parole on 3 September 2000, lived with his mother for three months, and then moved to a house in Morley ([3], [5]).
The Department sent a letter dated 23 July 2001 to the Koondoola address, advising that the Minister was considering cancelling Mr Osborne's visa under s 501(2) and inviting written comments. A second letter, dated 4 September 2001, was sent by registered mail to the same address. It included a new ministerial direction and invited further comment ([4]). Mr Osborne did not receive either letter. By then he was living elsewhere. The evidence was that he saw his mother about once a week, but she did not tell him about the first letter. He later heard from friends that registered mail had been sent to him ([5]–[6]).
The Minister decided to cancel the visa on 13 February 2002. The material before the Minister recorded that Mr Osborne had not replied to the notices. It also stated, under “The Best Interests of the Children”, that he had no children, although he had a son ([7]). A cancellation notice was hand delivered to the Koondoola address on 3 April 2002, and Mr Osborne was taken into immigration detention that day ([7]).
Mr Osborne sought judicial review under s 39B of the Judiciary Act 1903 (Cth). He argued, among other things, that the Minister had not given him an effective opportunity to respond and had therefore failed to consider relevant matters, including his child's interests ([8]–[9]). The Federal Court, French J, dismissed the application and ordered him to pay the Minister's costs ([23]).
The central question was whether the Minister could rely on the absence of a response when Mr Osborne had not actually received the proposed-cancellation notices. Section 501(2), as reproduced in the reasons, allowed cancellation if the Minister reasonably suspected that the person did not pass the character test and the person did not satisfy the Minister that they passed it ([10]). It did not expressly require the Minister to give notice before exercising the power.
French J nevertheless read a notification requirement into the statutory scheme. The critical reasoning was that the statutory condition could not sensibly be met merely because a visa holder stayed silent without being told that cancellation was being considered. The judgment therefore treated prior notification as an implied necessary condition of the power ([19]).
That implication did not mean the Department had to prove that the visa holder actually read or received a notice. French J described the standard as taking “reasonable steps” to notify the person ([20]). This was a practical standard, not an absolute guarantee of delivery. The judgment also recognised the countervailing concern: if actual notice were always essential, a person could defeat cancellation simply by moving to an address unknown to the Department ([20]).
The facts mattered to whether the Department's steps were reasonable. Mr Osborne had identified his mother's address as the place where he intended to live after release. He did live there for three months after release, before moving to Morley ([3], [5]). By July 2001 he had been out of prison for about ten months, and the Department's records included an inquiry about his whereabouts and a note referring to Casuarina and Bunbury ([17]). But French J considered that sending the notices to his mother's address was reasonable in the circumstances, particularly because it was an address he had previously identified and where he had in fact lived after release ([20]).
The regulations governing service were relevant to the factual setting but did not themselves make compliance a condition of the s 501 power. The judgment set out the former reg 5.02A and the later reg 2.55, which provided methods for giving documents to visa holders ([12]). French J said the regulations appeared to assume that notification would occur and established a formal mechanism, but did not in terms condition the exercise of the power under s 501 ([20]).
The result was that the implied condition was satisfied even though Mr Osborne did not receive the letters. On that finding there was no error of law, and the Court did not need to resolve whether the privative clause would otherwise bar review ([22]).
The reasons describe s 501 as containing no express requirement to notify the visa holder before cancellation ([19]). The Court's interpretive step was to imply notification as a necessary condition because the statutory test required the person not to satisfy the Minister that they passed the character test. A person could not fairly be treated as having failed to satisfy that requirement merely through silence in the absence of notice ([19]).
The judgment therefore adds a qualification to the exercise of the statutory power: reasonable notification must precede the decision. It does not, however, formulate an inflexible service rule or insist on actual receipt. The required steps depend on the circumstances, and sending notice to a last known address may be sufficient ([20]).
The judgment discusses Wang v Minister for Immigration & Multicultural Affairs [2002] FCA 157, which concerned different statutory provisions, ss 129 and 131. As French J explained, those provisions involved a cancellation followed by consideration of whether it should be revoked after notice. In Wang, the sending of notice was treated as an essential part of that statutory scheme. The Full Court dismissed the Minister's appeal in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, and French J noted that the Minister's argument that Wang was wrong had therefore been overtaken ([16], [18]).
Osborne applied a related idea to s 501, but with an important distinction: the notice obligation was implied, rather than expressly stated in the provisions considered in Wang. The judgment's holding is about reasonable steps in the specific s 501 setting, not a general rule that every migration decision requires prior notice.
On s 474, the reasons did not decide that the privative clause was ineffective. Since the notification condition had been met, the clause did not need to determine the outcome. French J's comment that s 474 might not protect a decision made without reasonable notification was expressly framed as a doubt about a hypothetical case ([22]).
At [19], French J said: “It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister's intention to cancel.” In plain English, the Minister could not treat a person's failure to reply as showing that they had not satisfied the character-test requirement unless the person had been told that cancellation was under consideration.
At [20], French J stated: “The implied condition requires only that reasonable steps be taken to notify the visa holder.” This is the key practical standard. The decision did not turn on whether Mr Osborne had actually read the letters. It turned on whether the Department had taken reasonable steps in the circumstances.
Also at [20], the Court explained that sending a notice to the last known address could be reasonable, particularly where the address was that of a close relative and the visa holder had previously said he intended to live there. The significance is that an address can remain a reasonable notification destination even if the person has moved, depending on what the Department knew and the history of the address.
At [22], French J concluded that, because the implied condition had been satisfied, “there was no error of law on the part of the Minister”. This connects the notice analysis to the outcome: no actual notice, by itself, did not establish legal error where reasonable steps had been taken.
The child-related observation was separate. At [21], French J recorded that the Minister appeared to have acted on incorrect information that Mr Osborne had no child, and that the child's interests had not been considered. The judgment did not decide that this made the cancellation invalid. It said only that the fact might warrant reconsideration.
The decision is most directly relevant where a statute gives a decision-maker power to cancel a visa based on a person's failure to satisfy a statutory test, but does not expressly specify a pre-decision notice requirement. In that setting, Osborne supports asking whether notice is implied as necessary to make the statutory condition meaningful. French J's answer under s 501(2) was yes ([19]).
It is also relevant where notice was sent but not actually received. The case makes actual receipt distinct from reasonable notification. The questions raised by the reasoning include what address the person last gave, what the decision-maker knew about a move, whether the address had a reliable connection to the person, and what steps were practical in the circumstances ([17], [20]).
The particular facts supporting reasonableness in Osborne were significant: the applicant had himself identified his mother's address as his intended post-release residence, and he did live there for three months after release ([3], [20]). The case does not establish that any address once supplied will always suffice, nor does it specify what further inquiry is required where the Department has information that the person has moved. The Department's file contained an internal request to find out where Mr Osborne was residing and a note referring to other locations ([17]); nevertheless, the Court found the steps reasonable on the whole record.
The reasoning may also be relevant to arguments involving privative clauses, but the limit is important. French J did not decide that s 474 could never apply where notice was inadequate. He said it was doubtful that the clause would protect a decision if the implied notification condition had not been met, drawing an analogy with Wang ([22]). That is an observation about a hypothetical situation, not the holding on the facts.
The supplied judgment does not contain any later judicial treatment of Osborne. It therefore cannot establish how later courts applied, distinguished, followed, or confined this decision.
The judgment itself refers to two earlier authorities. It discusses Wang as a Federal Court decision about notification under ss 129 and 131, and notes that the Full Court dismissed the Minister's appeal in NAAV ([16]). French J considered Wang relevant by analogy, while emphasising that the statutory provisions in that case differed from s 501 ([16]–[19]).
The judgment's description of NAAV is limited to the appeal from Wang and the fact that the Minister's challenge to Wang had been overtaken ([16], [18]). It does not describe NAAV as deciding the specific implied-notification issue under s 501 that arose in Osborne. The relationship is one of context and comparison, not a statement that the Full Court had already decided Osborne's precise question.
Accordingly, any account of post-2002 treatment would require sources beyond this judgment. The reasons supplied here support describing Osborne's own holding and its relationship to the earlier notification authorities, but not making claims about what subsequent courts did with it.
The judgment leaves open how the implied reasonable-notification requirement would operate on different facts. It says that sending a notice to the last known address can be reasonable, but does not lay down a checklist or minimum number of inquiries. The records here included an email asking where Mr Osborne was residing and a note referring to Casuarina and Bunbury ([17]). French J nevertheless found the Koondoola address reasonable because of its particular history ([20]). The judgment does not explain what combination of contrary information would make further steps necessary.
It also leaves open the consequences of failing to take reasonable steps. French J said that in such a case it was “doubtful” that s 474 would protect the decision, because notification would be integral to the statutory scheme ([22]). That is not a final ruling on the reach of the privative clause. The application was dismissed on the basis that the condition had been satisfied, so the alternative case was not decided.
The significance of the error about Mr Osborne's child was also unresolved. The Minister's material said he had no children, although the judgment found that he had an Australian-citizen son and that the child's interests were not considered ([7], [21]). French J said this might warrant reconsideration, but did not decide whether it amounted to a reviewable error or what legal consequence followed.
Finally, the decision does not determine how the reasoning applies to statutory schemes with express notice provisions, different service rules, or different consequences for non-response. It distinguished the provisions in Wang from s 501 and focused on the wording and structure of s 501(2) ([16], [19]). The safest account of Osborne is therefore confined to its holding: under the provision considered, reasonable prior notification was implied, and reasonable steps could satisfy that condition without proof of actual receipt.
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REASONS FOR JUDGMENT 1 Jason Deporis Osborne was born at Napier in New Zealand on 4 November 1979. He is a New Zealand citizen. He entered Australia on 5 August 1994 at Perth. He was issued with a TY-444 Special Category Visa which entitled him to remain indefinitely in Australia. Mr Osborne's mother, four of his brothers and four of his sisters live in Western Australia. He also has four uncles and aunts who live in Western Australia. His father and one brother and sister live in New Zealand. He has no contact with his father or his other siblings in that country. He has a girlfriend whom he intends to marry and who is an Australian citizen. His son by that relationship, Matinga, was born on 17 October 2001. 2 On 30 November 1999, Mr Osborne was sentenced in the District Court in Perth for offences of burglary, driving without a motor driver's licence, reckless driving, breaches of bail, damage, and making a false bail undertaking. The effective total sentence was eighteen months with parole. The sentence was backdated to commence on 19 August 1999. On 2 March 2000, Mr Osborne was sentenced to a further fifteen months imprisonment on charges of assault occasioning bodily harm. 3 On 27 July 2000, Mr Osborne was interviewed at Canning Vale Prison by an officer of the Department of Immigration and Multicultural Affairs. In the course of that interview he told the officer that his mother resided at 46 Koondoola Avenue, Koondoola. He told the officer that upon his release on parole he intended to move in with his mother as he planned to work with his uncle who had a plastering business. That was his last address before his imprisonment as he had lived with his mother from June 1999 until he was taken into custody on 18 August 1999. Mr Osborne was released on parole on 3 September 2000 and completed that parole on 2 February 2001. 4 On 23 July 2001, an officer of the Cancellation and Detention Section of DIMA sent a letter addressed to Mr Osborne at 46 Koondoola Avenue, Koondoola. In that letter the officer advised that the Minister was considering whether to cancel his visa under s 501(2) of the Migration Act 1958 (Cth) ("the Act"). He was provided with an opportunity to give written comments or information relevant to that decision. The return date for such comments and information was 13 August 2001. A further letter dated 4 September 2001 was sent by registered mail to the same address and delivered there on 6 September 2001. A copy of the new Ministerial Direction No 21 under s 499 of the Act was attached. Mr Osborne was invited to provide any written comments to the DIMA office by 25 September 2001. The letter stated, inter alia: "If you do not respond by this date, a decision on whether there are grounds to cancel your visa will be made using information already held by the Department." 5 No response to the preceding letters was received. Mr Osborne was in fact then living in a house at Cato Place, Morley. Following his release from gaol he had lived with his mother for three months and had then moved into the Morley house. He said he received neither of the notices. He said in cross-examination that he would usually see his mother about once a week. She did not tell him of the DIMA letter of 23 July 2001. He said she was going to and from New Zealand. She had been away to New Zealand for four weeks in 2001 when his grandfather died there. 6 Mr Osborne said that he was told by friends in September 2001 that a registered letter had been sent to him. He did not ask his mother for the letter because he was unaware that she had it. He said he made inquiries as to who had the letters. In re-examination at the hearing on 12 July 2002 he said that he had found out about the letters only three or four months before. 7 On 13 February 2002, the Minister decided to cancel Mr Osborne's visa. The cancellation decision was based upon a departmental submission. The Minister was informed in the submission that Mr Osborne had been notified by mail at his residential address on 23 July 2001 of the intention to consider the cancellation of his visa. The Minister was also informed on 4 September he had been further notified by mail of the changes to the Minister's direction under s 499 and invited to submit any further comment. In each case the Minister was informed that he had not responded to the letters. Reference was then made to his criminal record, both juvenile and adult. Extracts from sentencing remarks in the District Court and in the Magistrates Court were set out. Under the heading "The Best Interests of the Children" it was stated that he had no children. In the event, the Minister personally signed a minute which included the following statements: "PART E: DECISION [42] I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Mr Jason Deporis OSBORNE's comments, and have decided that: . . . (d) I reasonably suspect that Mr Jason Deporis OSBORNE does not pass the character test and Mr Jason Deporis OSBORNE has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501 OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa." A notice of the cancellation of the visa dated 12 March 2002, was hand delivered to 46 Koondoola Avenue, Koondoola on 3 April 2002. It is said that Mr Osborne was served with a copy of the notice. He was taken into immigration detention on the same day. 8 On 17 April 2002, Mr Osborne lodged an application for review of the decision to cancel his visa. An amended application was filed on 10 July 2002.
The Grounds of the Application for Review 9 The application invokes the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth). The two stated grounds are as follows: "1. That the decision made by the Respondent Minister dated 12 March 2002 be set aside on the grounds that the procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed, more particularly that the Respondent Minister in deciding to cancel the Visa failed to have regard to sub-section 501(2)(b) in that he did not afford the opportunity to the Applicant to satisfy the Minister that he passed the character test by failing to serve notice upon the Applicant and by reason thereof the Respondent Minister failed to consider all of the primary considerations referred to in Ministerial Direction No 21 given pursuant to s 499 of the Act, and failed to consider the rights of the applicant's child, who is an Australian Citizen by birth, contrary to Article 3.1 of the United Nations Convention on the Rights of the Child; 2. Alternatively, that the decision made by the Respondent Minister dated 12 [March] 2002 be set aside on the grounds that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, in that in deciding to cancel the Visa failed to have regard to sub-section 501(2)(b) in that he did not afford the opportunity to the Applicant to satisfy the Minister that he passed the character test by failing to serve notice upon the Applicant and by reason thereof the Respondent Minister failed to consider all of the primary considerations referred to in Ministerial Direction No 21 given pursuant to s 499 of the Act, and failed to consider the rights of the applicant's child, who is an Australian Citizen by birth, contrary to Article 3.1 of the United Nations Convention on the Rights of the Child."
Statutory Framework 10 Section 501 of the Migration Act as it stood at the time of the decision to cancel Mr Osborne's visa was in the following terms, in the relevant parts: "501(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. (3) The Minister may: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; if (c) the Minister reasonably suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. . . . (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or . . . (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; . . . (7) For the purposes of the character test, a person has a substantial criminal record if: . . . (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;" 11 Section 504(1)(e) of the Act authorises the making of regulations: "(e) making provision for and in relation to: (i) the giving of documents to; (ii) the lodging of documents with; or (iii) the service of documents on; the Minister, the Secretary or any other person or body, for the purposes of this Act;" 12 At 23 July 2001, when the first of the two notices was sent to 46 Koondoola Avenue, reg 5.02A of the Migration Regulations applied to a document relating to: "(a) the proposed cancellation of a visa under the Act that is to be given to the holder of the visa." Subregulation 5.02A(2) provided that: "(2) For the Act and these regulations, a document must be given to a person who is the holder, or former holder of the visa: (a) by giving it to the person personally; or (b) by sending it to the person's residential or business address last known to the Minister; or (c) …." Regulation 5.02A was repealed by Statutory Rule 206 of 2001 with effect from 10 August 2001. At that time a new regulation 2.55 was added. Subregulations 2.55(1) and (3) provided as follows: "(1) This regulation applies to: (a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and (b) the giving of a document under subsection 501G(3) of the Act relating to a decision to cancel a visa under subsection 501(1) or (2) or 501A(2) or section 501B or 501F of the Act; and . . . (3) For a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways: (a) by handing it to the person personally; (b) by handing it to another person who: (i) is at the person's last residential or business address known to the Minister; and (ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and (iii) appears to be at least 16 years of age; (c) by dating it, and then dispatching it: (i) within 3 working days (in the place of dispatch) of the date of the document; and (ii) by prepaid post or by other prepaid means; to the person's last residential address, business address or post box address known to the Minister; (d) by transmitting the document by: (i) fax; or (ii) e-mail; or (iii) other electronic means; to the last fax number, e-mail address or other electronic address known to the Minister. (4) For a document mentioned in paragraph (1)(b): . . . (b) if the person has held the visa for at least 1 year when the document is to be given: (i) Immigration must try to find the person; and (ii) the Minister must give the document in one of the ways mentioned in subregulation (3)."
Statutory Framework - The Privative Clause 13 As a result of amendments to the Act embodied in the Migration Legislation Amendment (Judicial Review) Act 2001, which came into effect on 2 October 2001, s 474 was introduced into the Act. The new section created a class of decision called a "privative clause" decision. That is defined in s 474(2) thus: "In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)." Section 474(3) defines "decision" in very broad terms thus: "A reference in this section to a decision includes a reference to the following: (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; (d) imposing, or refusing to remove, a condition or restriction; (e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; (g) doing or refusing to do any other act or thing; (h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation; (i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act, or a regulation or other instrument under this Act, or under another Act; (j) a failure or refusal to make a decision." 14 Section 474 which is the operative section in the clause provides thus: "474(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."
The Notice Requirement 15 It was submitted for Mr Osborne that his last known address at the time of his departmental address was the Canning Vale Prison. While the relevant DIMA officers might have speculated that it would go to his mother's address, this was not known. Neither of the letters of 23 July or 4 September could comply with the requirements of regs 5.02A or 2.55 because there was at the time they were sent no last known address given that he had been released from Canning Vale Prison. There was no response from Mr Osborne and therefore no basis upon which it could be said that he failed to satisfy the Minister that he passed the character test. 16 Reliance was placed upon the decision of Mansfield J in Wang v Minister for Immigration & Multicultural Affairs [2002] FCA 157. An appeal, by the Minister, against that decision was dismissed by the Full Court as one of a group of five cases under the heading NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 on 15 August 2002. The Wang case was concerned with different provisions of the Act under which the Minister may cancel a visa without notice but is required to consider whether, in the light of response to a notice of the cancellation given after the event, the cancellation should be revoked. The decision, under s 131 of the Act, not to revoke a cancellation requires prior consideration of the response or lack of response to the notice of cancellation. In that case it was not in dispute that the notice sent was inadequate. The case was able to be considered on the basis that no notice had been sent. The sending of the notice was found to be an essential element of the statutory scheme reflected in ss 129 and 131. Its character as an essential element of the scheme and as a necessary condition of the exercise of the power not to revoke a cancellation was not altered by the operation of the privative clause, s 474. 17 The present case raises a somewhat different issue. The notices were sent to an address which the applicant had stated would be his address after his release from prison. Indeed, it was his address for three months after that release. The difficulty in this case arises because of the delay in sending the notice. When it was sent Mr Osborne had been out of prison for some ten months and had moved on. There does not appear to have been any attempt by any officer of DIMA to ascertain his whereabouts. An internal email dated 23 July 2001 was in evidence in which one DIMA officer designated "Robert" asked another DIMA officer, designated "Kerry": "This one was granted parole in September 2000. Would you please find out where he is residing." A few pages later in the departmental file, at folio 112, appears a handwritten memorandum which is undated. It bore the entries, inter alia: "Residing Casuarina… was Bunbury." 18 It was contended for the Minister that during his imprisonment at Canning Vale Prison prior to his release on parole, Mr Osborne had two residences namely Canning Vale Prison and his mother's residence at 46 Koondoola Avenue, Koondoola. For the purposes of the regulations, these were said to be his two last known residential addresses. However at the time of service of the two notices in July and September 2001, DIMA was aware that he was no longer at Canning Vale Prison and accordingly the notices could not bona fide be served on him by sending them to that address. On this basis it was said there was no error on the part of the Minister in sending the notices to 46 Koondoola Avenue, Koondoola. That was the residential address last known to the Minister for the purposes of the regulations applicable at the times that the two letters were sent. Alternatively, the Minister argued that s 474 of the Act precluded a grant of any relief to Mr Osborne under s 39B of the Judiciary Act. It was argued that the decision of Mansfield J in Wang was in error. That contention has, of course, been overtaken by the decision of the Full Court. 19 Unlike the provisions of s 129 and s 131 considered in Wang, there is no express provision in the Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister's power to cancel the visa under s 501. Nevertheless, prior notice to the visa holder is to be implied as a necessary condition of the power for it cannot be exercised unless: "The person does not satisfy the Minister that the person passes the character test." It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister's intention to cancel. Some process of notification is therefore contemplated even thought the Act does not set it out. Indeed the regulations seem to assume as much. 20 The implied condition of notification is not absolute. It could not be. For otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. To send a notice of intended cancellation to his last known address is a reasonable step. When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed an intention to resume living, then it is plainly a reasonable process. The aid of the regulations is not required to determine what is reasonable in these circumstances. They do not in terms condition the effect of exercise of the power under s 501. They establish a mechanism for notification which appears, in a formal sense, to have been followed in this case. 21 The reality is that the Minister appears to have made his decision on the incorrect advice that Mr Osborne has no child. He does have a child and the child is an Australian citizen. The interests of that child have not been taken into account in the cancellation decision. This is not to say that this was the fault of the Minister's officers. However it is a fact that might warrant a reconsideration in this case. 22 As a matter of law however, the implied condition having been satisfied in this case, there was no error of law on the part of the Minister in proceeding to make the cancellation decision. There is therefore no occasion for the operation of the privative clause. Had there been, contrary to my finding, a failure to meet the implied condition of reasonable notification, then it is doubtful that the privative clause would have protected that decision against review. For such a case would be analogous to that in Wang in which notification was an integral part of the statutory scheme.
Conclusion 23 For the above reasons the application will be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.
Counsel for the Applicant: Mr JC Curthoys (Pro bono)
Solicitor for the Respondent: Australian Government Solicitor
Osborne
Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 157
The application was dismissed. The applicant was ordered to pay the respondent's costs.