I have previously blogged about about the Full Federal Court decision in EFX17.
It was my view that the Full Court had it right and it was only procedurally fair that a requirement of “understanding” was implied in the giving of notices under the Migration Act. Unfortunately, the Minister didn’t hold the same view and appealed to the High Court . Even more unfortunately, the High Court agreed:
[25] When “giving” and “inviting” bear their ordinary meanings – respectively, of delivering and of requesting formally – with the implication that the delivery and request will be made in English, then it follows naturally that the expression “in the way that the Minister considers appropriate in the circumstances” is only concerned with the method of delivery and request rather than the content. As senior counsel for the respondent properly accepted, a requirement that the Minister consider the capacity of a person to understand the written notice or invitation would require more than physical delivery.
….. and ….
[31] For these reasons, the majority of the Full Court erred in reasoning that the capacity of a person to understand the written notice, particulars, or invitation described in s 501CA(3) was relevant to whether the written notice and particulars had been given or whether the invitation to make representations had been made.
However, it wasn’t all bad news for EFX17, because the High Court also found it wasn’t made sufficiently clear to EFX17 when the 28 day period for responding was reckoned:
[42] For these reasons, an invitation to make representations “within the period … ascertained in accordance with the regulations” must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the invitation such as “28 days from the day that you are handed this document”. The invitation in the letter from the delegate of the Minister did not do so. The notice of contention should therefore be upheld.
Back to the drawing board for the Minister!
Creative commons acknowledgement for the photograph.
