The devil is in the details – High Court rules in favour of Afghan refugee represented by Prisoners Legal Service

By Mitree Vongphakdi|20 April 2021
High Court of Australia

Abdul (not his real name) is an ethnic-Hazara refugee from Afghanistan who was granted a protection visa by Australia in 2009. He did not receive any schooling as a child and was raised in a poor farming community in rural Afghanistan, writes Mitree Vongphakdi.

He cannot read or write in English and he struggles to understand spoken English. He also suffers from schizophrenia occurring against a background of traumatic events in his childhood, including attacks at the hands of Taliban soldiers.

Whilst PLS was running a visa cancellation education session at Brisbane Correctional Centre (BCC), another inmate introduced Abdul to us. Anticipating forthcoming issues with his visa, PLS kept in touch with Abdul.

On 3 January 2017, the Minister for Immigration and Border Protection cancelled Abdul’s protection visa because he had been sentenced to seven years’ imprisonment for committing acts intended to cause grievous bodily harm. The decision was made under s501(3A) of the Migration Act 1958 (Cth) that requires that non-citizen’s visas must be automatically cancelled for certain prison sentences or criminal convictions.

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The minister sent an email explaining this decision to BCC and attaching a Notice of Visa Cancellation (“the notice”). The notice was printed off by a prison officer and handed to Abdul the next day.

The notice explained that Abdul had to respond within 28 days of receiving the notice if he wished to revoke the decision, and that he was “taken to have received it at the end of the day it was transmitted”. Case notes from Queensland Corrective Services noted that Abdul could not read or write in English, and that he held concerns about understanding the deportation documentation provided to him.

Owing to his confusion about the documents, Abdul continued to advise PLS through an interpreter, that he had not received any correspondence relating to his visa. In the meantime, PLS was appointed as Abdul’s migration agents and made a Freedom of Information (FOI) request for all documents held by the Department of Immigration and Border Protection about his circumstances.

PLS became aware of Abdul’s visa cancellation when the FOI request was fulfilled in June 2017. At that point, PLS wrote to the department requesting that Abdul’s notice be reissued owing to his “significantly impaired” capacity to understand the process. The department refused, contending that the notice was “legally effective”.

Section 501CA(1) of the Migration Act 1958 (Cth) provides that:

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“As soon as practicable after making the original decision, the Minister must:

a. give the person, in the way the Minister considers appropriate in the circumstances:

i. a written notice that sets out the original decision; and

ii. particulars of the relevant information; and

b. invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about the revocation of the original decision.”

The Migration Regulations 1994 (Cth) provides that a response to the minister’s decision should be made within 28 days after a person is given a notice of visa cancellation. The Migration Regulations further stipulate that the notice can be given to the recipient by prepaid post, by email or by handing it to the person.

Where the notice is transmitted via email, the recipient is deemed to receive the notice at the end of the day the email is transmitted. If the notice is given by hand, the recipient is deemed to have received the notice at the time it is handed to them. 

PLS commenced proceedings in the Federal Circuit Court (FCC), contending that the minister had failed to comply with s501CA(1) on two grounds. First, the minister failed to consider Abdul’s capacity to understand the notice. Second, the notice was delivered by a person who was not a delegate of the minister. The FCC disagreed. On appeal to the Full Federal Court, PLS won on both points. The minister then appealed to the High Court.

On both grounds, the High Court agreed with the minister. Adopting the ordinary meaning of the words “give” and “invite” under the section, the High Court held that an individual’s capacity to understand a notice of cancellation is not a relevant consideration. Further, as a matter of administrative necessity, the minister or their delegate is not required to personally deliver the notice, but to ensure its delivery occurs. 

Despite these findings, the appeal turned on a notice of contention filed by PLS relating to the incorrect content in the Notice of Visa Cancellation.

PLS sought to uphold the decision of the Full Federal Court on the ground that the notice issued to Abdul did not specify the period in which he could respond. The notice was handed to Abdul the day after it was emailed to the prison, yet the notice indicated that he was taken to receive it the day it was transmitted by email, a clear factual inconsistency. As such, the notice in this case, contrary to s501CA(1), failed to state the period in which a response could be made.

As the High Court explained, “an invitation to make representations...must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained”. 

On this basis, the High Court dismissed the minister’s appeal, and the minister will now have to reissue Abdul’s notice. This will provide him with an opportunity to try and reverse the visa cancellation and put his case forward about why he should be permitted to remain in Australia.

This decision highlights the importance of complete and correct visa cancellation notices. If you have recently handled a visa cancellation matter or if you are handling one in future, it will be worthwhile to scrutinise the wording of any notice issued by the department and to take note of the way the notice was transmitted to the recipient. Any misstatement within the notice or mistake in relation to the delivery of notice that affects the time frame in which the recipient can respond may prove crucial to that matter.

This case marks the first time that PLS has appeared in the High Court in relation to an immigration matter and we are delighted to have achieved a positive outcome for Abdul. We are especially thankful to Dan Fuller and Anna Mitchelmore SC who acted as counsel and to Moray and Agnew Lawyers for their support in providing us with a secondee, who played an integral role in these proceedings.

The judgment can be accessed here.

Mitree Vongphakdi is a paralegal at Prisoners Legal Service (PLS).

The devil is in the details – High Court rules in favour of Afghan refugee represented by Prisoners Legal Service
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