HIGH COURT OF AUSTRALIA
GORDON A-CJ,
EDELMAN, STEWARD, JAGOT AND BEECH‑JONES JJBIF23 BY HIS LITIGATION GUARDIAN
THE PUBLIC ADVOCATE APPELLANTAND
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS RESPONDENT
BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] HCA 44
Date of Hearing: 3 September 2024
Date of Judgment: 4 December 2024M44/2024
ORDER
1.Appeal allowed with costs.
2.Set aside the orders of the Full Court of the Federal Court of Australia made on 19 December 2023 and, in their place, order that:
(a) the appeal be allowed with costs; and
(b) orders 2 and 3 of the Federal Circuit and Family Court of Australia (Division 2) made on 7 June 2023 be set aside and, in their place, order that:
(i) a declaration issue that the respondent is obliged to give BIF23, or if applicable his guardian, a written notice and invitation under s 501CA(3) of the Migration Act 1958 (Cth) in relation to the decision made on 24 November 2021 by the respondent's delegate to cancel BIF23's Class AH Subclass 101 Child (Permanent) visa ("the Decision");
(ii) a writ of certiorari issue to quash the notice and invitation purportedly given to BIF23 on 1 December 2021 under s 501CA(3) of the Migration Act 1958 (Cth);
(iii) a writ of mandamus issue directed to the respondent requiring the respondent to give BIF23 (by his litigation guardian, the Public Advocate) a written notice and invitation under s 501CA(3) of the Migration Act 1958 (Cth) in relation to the Decision; and
(iv) the respondent pay BIF23's costs.
On appeal from the Federal Court of Australia
Representation
N M Wood SC with E A M Brumby for the appellant (instructed by Victoria Legal Aid)
G A Hill SC with J A Barrington for the respondent (instructed by Sparke Helmore Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs
Immigration – Visas – Cancellation of visa – Revocation of cancellation of visa – Where appellant convicted of offences and sentenced to aggregate term of imprisonment – Where appellant's visa mandatorily cancelled on the basis of "substantial criminal record" under s 501(3A) of Migration Act 1958 (Cth) – Where appellant notified of cancellation and invited to make representations about revocation of cancellation decision within 28 days pursuant to s 501CA(3) of Migration Act ("notification") when appellant was receiving psychiatric care – Where appellant lacked legal capacity to make representations sought or to empower person to make decisions on his behalf at date of notification – Where appellant did not make representations sought within 28 days – Where guardian subsequently appointed to appellant pursuant to Guardianship and Administration Act 2019 (Vic) – Whether notification valid – Whether Minister discharged duty in s 501CA(3) at date of notification.
Words and phrases – "cancellation", "capacity", "character test", "constructively unperformed", "fit to plead", "guardian", "invitation", "notification", "practicable", "representations", "revocation", "soundness of mind", "substantial criminal record", "unable to be held criminally responsible", "vitiate".
Migration Act 1958 (Cth), ss 501, 501CA.
Guardianship and Administration Act 2019 (Vic), ss 3(1), 5, 22, 30.
GORDON A-CJ, EDELMAN AND STEWARD JJ. The appellant was invited by the respondent ("the Minister") to make representations about the revocation of a decision to cancel his Class AH Subclass 101 Child (Permanent) visa pursuant to s 501CA of the Migration Act 1958 (Cth) ("the Act") at a time when he lacked the legal capacity to do so (in the particular sense described below). The issue for determination is whether, in such specific circumstances, the invitation was validly made. For the reasons which follow, it was not.
Relevant background
The appellant is a citizen of Cambodia. He arrived in Australia with his mother at the age of 12. In 2021, the appellant was convicted of various offences, including theft, intentionally causing injury, and affray. He was sentenced to an aggregate term of imprisonment of 18 months. A certified extract of the court order records that the appellant "may be at risk due to the following: psychiatric illness". The order referred to a report prepared by "Forensicare" (otherwise known as the Victorian Institute of Forensic Mental Health) and noted that the appellant "appears incoherent". It recommended "all reasonable assessment and supervision to ensure safe custody".
The appellant was held at the Ravenhall Correctional Centre ("Ravenhall"). In October 2021, the Department of Home Affairs sent the appellant a "questionnaire" which he completed. It asked the appellant simple questions, such as where he was born and whether either of his parents were permanent residents. Nonetheless, in an email sent by an officer of Ravenhall to the Department, which attached the completed questionnaire, it was recorded that the appellant "was very confused by these questions".
In November 2021, a delegate of the Minister cancelled the appellant's visa, pursuant to s 501(3A) of the Act. Given that the delegate was satisfied that the appellant had a "substantial criminal record" as defined (see below), cancellation was mandatory. Pursuant to s 501(5) of the Act, the rules of natural justice do not apply to a decision made under s 501(3A).
An email was sent by the Department to Ravenhall which contained a notification of the cancellation of the appellant's visa ("the notification"). At the time, the appellant was receiving psychiatric care at the Erskine Unit at Ravenhall. The notification gave reasons for that cancellation and then invited the appellant to make representations about the revocation of that cancellation decision. It said:
"While your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations to the Minister about revoking the original decision to cancel your visa under s 501(3A).
You are hereby invited to make representations to the Minister about revoking the original decision. The representations must be made in accordance with the instructions outlined below, under the headings 'How to make representations about revocation of the original decision' and 'Timeframe to make representations about revocation'."
The notification explained how the representations were to be made and, importantly, stated that the representations had to be made "within 28 days after the day the notice was handed to you". It was not in dispute that notification took place on 1 December 2021. The covering email stated that it was important that the full documentation be given to the appellant "without delay". It also said that the appellant was required to sign, and then return to the Department, a formal acknowledgement of receipt. This the appellant did on 1 December 2021.
On the same day, a social worker at Ravenhall contacted Victoria Legal Aid ("VLA") to seek urgent legal advice in relation to the cancellation of the appellant's visa. This was apparently done with the appellant's verbal consent. Two days later, a solicitor with VLA called the appellant by phone and advised him to seek revocation of the cancellation of his visa. VLA also referred the appellant to "Refugee Legal". It would appear that Refugee Legal were unable to assist the appellant at this stage.
On 23 December 2021, Forensicare made an urgent application for a guardianship order from the Victorian Civil and Administrative Tribunal ("VCAT") in relation to the appellant. In its reasons for application, Forensicare explained that the appellant's visa had been cancelled and that he had 28 days within which to respond. Forensicare recited that the appellant had been assessed on 17 December 2021 by a consultant psychiatrist as "having 'nil insight' into his circumstances and it was considered that entrenched, firmly held, bizarre and grandiose delusions were colouring [the appellant's] decision-making regarding his possible deportation".
The application recited that that assessment had been confirmed by another consultant psychiatrist. A report from that consultant psychiatrist was prepared on 23 December 2021 and provided to VCAT. It recited that after seeing the appellant that day, the psychiatrist concluded that the appellant had a "disability", namely:
"He has a diagnosis of Schizoaffective disorder, which has been ongoing since July 2019. He has grandiose delusions, disorganisation, visual hallucinations and absent insight."
The appellant was described as "singing and dancing in the courtyard", with partial hygiene and no insight into his illness. Relevantly, the report recorded the conclusion of the psychiatrist that the appellant understood that he was taking medication but was unable to understand its purpose because he did not believe he had a mental illness. The report also recorded the conclusion that the appellant was not able to make decisions about his general living circumstances, and had no decision-making capacity about his financial and property affairs. The report recorded in relation to the appellant's grandiose delusions that he believed, for instance, that he could raise people from the dead and will be given $10,000 to $50,000 by the Australian Government. These delusions, it was said, significantly impacted on his ability to weigh information as part of a decision-making process. The psychiatrist was of the view that the appellant was "currently significantly mentally unwell".
On 11 January 2022, VCAT appointed the Public Advocate to be the guardian of the appellant pursuant to s 30 of the Guardianship and Administration Act 2019 (Vic) ("the Guardianship Act"). Amongst other things, the guardian:
"has power to start and defend legal proceedings, on behalf of [the appellant] only about:
undertake legal proceedings relating to personal matters, including the represented person's immigration visa and parole application."
This is the relevant sense in which it should be concluded that the appellant lacked legal capacity on 1 December 2021 (discussed in more detail below). By 11 January 2022, the 28‑day period had, of course, expired.
On 25 March 2022, the Public Advocate delegated her powers to an Advocate Guardian at the Office of the Public Advocate. On 18 July 2022, Refugee Legal, now acting for the appellant with the consent of the Public Advocate, made a request to the Department that it re-notify the decision to cancel the appellant's visa. The Department refused to do so. It was of the view that the notification given on 1 December 2021 was validly made pursuant to s 501CA(3).
On 8 September 2022, the Public Advocate applied to VCAT for reassessment of the guardianship order for it to be amended to ensure that it was clear there was power pursuant to s 40 of the Guardianship Act for the Public Advocate to bring and defend these proceedings. On the same date, VCAT appointed the Public Advocate as the appellant's guardian and gave the Public Advocate power to decide to start and to defend legal proceedings regarding the appellant's "Australian residency status" including any options open to the appellant under the Act. That order recorded that due to a disability the appellant did "not have capacity to make decisions" about those matters.
On the next day, 9 September 2022, the Public Advocate requested VCAT to provide any medical and psychiatric reports that had been submitted for the appellant because the initial file that had been provided to the Office of the Public Advocate did not contain the medical evidence that was attached to the application lodged by Forensicare. The Public Advocate received four medical reports from VCAT, dated 17 November 2017, 2 February 2018, 22 June 2020 and 23 December 2021. The last report is the same report that was attached to Forensicare's application lodged with VCAT on 23 December 2021 which has been set out above. It is not clear whether the earlier reports were before VCAT when it made the order on 11 January 2022.
The report dated 17 November 2017 recorded that a psychiatric registrar who had last seen the appellant on 9 November 2017 had, at that time, proposed a "[c]urrent working differential of schizophrenia ... due to ongoing psychotic symptoms". The report described the appellant's mental health disorder as "Polysubstance Abuse" and "Drug Induced Psychosis". That medical report further recorded that the appellant's disability fluctuated and, by 2017, had been evident for approximately four years and had led to a steady decline in the appellant's functioning throughout 2017. The copy of the report provided by VCAT recorded that the report was sent by facsimile from the "Dandenong Community Care Team" on 23 November 2017.
The second report, dated just a few months later on 2 February 2018, was from the appellant's general practitioner and was provided to VCAT by email dated 20 February 2018. The medical report recorded that the doctor had been his medical practitioner for four and a half years and last saw him that day. The general practitioner described the appellant's disability, evident for more than five years, as schizophrenia, dependence on opiates and abuse of amphetamines (the last of which was reported to have ceased by the appellant's psychiatric care manager).
The third report, dated 22 June 2020, was provided to VCAT on that day. The author of the report, a psychiatry registrar, recorded that the appellant was then being case managed on a community treatment order and had a diagnosis of schizophrenia and severe polysubstance abuse disorder which had been evident for more than seven years and was fluctuating. The opinion of the author was that at that time the appellant did not have decision-making capacity about his financial and property affairs including legal matters even with support.
In explaining their reasons for that opinion, the author stated that "[a]s a result of [his] mental illness, he has difficulty retaining information & weighing the information to make an informed decision". The report recorded that this observation about the appellant was "evident on frequent assessments" with Dandenong Continuing Care Team. The report further recorded that the appellant's "decision making capacity continues to remain impaired, despite support from Social Workers & his Case Manager".
On 12 October 2022, the appellant lodged an application for judicial review in Division 2 of the Federal Circuit and Family Court of Australia. It was filed late (by nine months and 22 days). Nonetheless, Judge Mansini ordered a necessary extension of time. This is not challenged.
The appellant's legal capacity
On 1 December 2021 the appellant lacked the legal capacity to make the representations sought, and lacked also the ability to empower a person to make decisions on his behalf such as by granting an enduring power of attorney, or by applying for a guardian to be appointed, in either case for the purpose of making any such representations on the appellant's behalf. The appellant's lack of legal capacity to make the representations, or to empower another to make the representations, meant that with or without assistance it was impossible for the appellant to make the representations sought. The Department did not know about this state of affairs.
Although the Minister sought to emphasise that the appellant had some legal capacity to do some things such as to consent for Forensicare to contact VLA on 1 December 2021, it was not otherwise seriously doubted that on 1 December 2021, the appellant did not have the legal capacity to respond to the invitation made in the notification, or to formally empower a person to make decisions on his behalf by granting an enduring power of attorney or seeking the appointment of a guardian. On that date, and throughout the entire course of the 28‑day period within which the appellant was entitled to make representations in response to the invitation made in the notification, the inference to be drawn, on the balance of probabilities, from the whole of the evidence before the Court is that the appellant did not have the legal capacity to respond to the invitation made in the notification, or to formally empower a person to make decisions on his behalf by granting an enduring power of attorney or seeking the appointment of a guardian. That inference arises from the contents of the report of the consultant psychiatrist upon which VCAT relied when it appointed a guardian on 11 January 2022. It also arises from the terms of the guardian's appointment, which included the power to undertake legal proceedings relating to the appellant's "immigration visa". It follows that in January 2022 VCAT must have been satisfied that the appellant did not have "decision-making capacity", as defined in the Guardianship Act, in order to be able to make representations to the Minister for the purpose of s 501CA(3) of the Act. The three earlier reports reinforce that finding.
Section 501CA
It is necessary to set out the relevant parts of s 501CA as it was in 2021. It relevantly provides:
"(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that 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 revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked."
The phrase "in the way that the Minister considers appropriate in the circumstances" which appeared in s 501CA(3)(a) has since been repealed. It has been replaced by new s 501CA(3A), which provides:
"The notice under subsection (3) must be given in the prescribed way."
As mentioned above, the appellant's visa was mandatorily cancelled given that, for the purposes of s 501(3A), the Minister was satisfied that the appellant did not pass the character test, because he had a "substantial criminal record", and he was serving a sentence of imprisonment. The definition of a person having a "substantial criminal record" is set out in s 501(7) of the Act. The appellant satisfied s 501(7)(c) of the Act because he had been sentenced to a term of imprisonment of 12 months or more. Contextually, it is important to note s 501(7)(e) and (f), which provide as follows:
"(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution."
Both s 501(7)(e) and (f) address the circumstances of a person who lacks legal capacity in relation to their criminal offending. It is accepted that the visa of such a person cannot be mandatorily cancelled pursuant to s 501(3A) and thus will never trigger an application of s 501CA. That is because s 501(3A)(a)(i) refers only to a person having a substantial criminal record because of an application of s 501(7)(a), (b) or (c); paras (e) and (f) are not mentioned. Instead, the visa of such a person may be cancelled on a discretionary basis pursuant to s 501(2) of the Act, in which case the rules of procedural fairness apply.
The proceedings below
Before Judge Mansini the appellant pursued three grounds of judicial review: first, that it was not "practicable", to use the language of s 501CA(3), to deliver the notification to the appellant given his lack of legal capacity at the time; secondly, that the purported delivery of the notification constituted a denial of procedural fairness; and thirdly, that the Minister had acted unreasonably, irrationally or illogically. Each of these grounds was dismissed. Relevantly, Judge Mansini decided that the phrase "as soon as practicable" was "properly construed as a condition or limitation on the time by which the Minister is to deliver written notice of a visa cancellation decision and invite representations and does not extend beyond physical delivery to a requirement that the Minister ensure or consider the person's understanding or capacity to understand".[1] In reaching this conclusion, her Honour applied the decision of this Court in Minister for Immigration and Border Protection v EFX17[2] (discussed below in more detail). In that case, this Court decided that the words "give" and "invite" in s 501CA refer only to the physical acts of giving and inviting, and do not refer to the capacity of the recipient to understand what is contained in the notification they had been served with.
[1]BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 377 FLR 409 at 420 [74] (emphasis omitted).
[2](2021) 271 CLR 112.
Before the Full Court of the Federal Court of Australia, the appellant persisted with the ground that the giving of the notification was not "practicable" and with the ground that the Minister had acted unreasonably. He added a further ground which was wholly new, namely that the court below should have found that the notification could have been reissued and that it would be legally unreasonable for the Minister not to reissue the notification, especially as the appellant by that time had a guardian to represent his interests. The Full Court unanimously rejected each ground. Relevantly, as to the first ground, and relying upon EFX17,[3] Markovic and Anderson JJ (with whom Derrington J agreed) said:[4]
"The text of s 501CA(3) of the Act is clear. As the Minister submits, the assessment of whether and when it is practicable to give a notice and invitation in conformity with the requirements of the section focusses only on when it is practicable or feasible for the Minister to send the communication. It does not require the Minister to assess whether the person receiving the notice understands it or has the capacity to do so. That was also the conclusion reached by the primary judge (at [74] of BIF23). Her Honour was correct to do so."
[3](2021) 271 CLR 112.
[4]BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 301 FCR 229 at 247 [78].
Again relevantly, the Full Court refused to grant the appellant leave to rely on his new ground as it was found to have no reasonable prospects of success, and because there was no explanation as to why the ground was not raised below. The Full Court found that the new ground had no reasonable prospects of success principally in reliance upon the applicable statutory scheme, which included s 198(2B)(c). This provision obliges an officer to remove an unlawful non-citizen who has been "invited" to make representations in accordance with s 501CA when either no representations have been made within the 28‑day period or, in a case where such representations have been made, the Minister has decided not to revoke the cancellation decision. Markovic and Anderson JJ relied heavily on the earlier judgment of the Full Court of the Federal Court in BDS20 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs[5] and relevantly reasoned:[6]
"[Section] 198(2B)(c) of the Act sets out how the obligation to remove can be deferred pending the outcome of the process in s 501CA(3) and (4) and, by its language, implies that the process which leads to a deferral can only be invoked by a single invitation. The period for deferral will come to an end when the prescribed period for making representations ends and the invitation to make representations was not taken up, or when the Minister makes a decision not to revoke the cancellation decision, at which time the obligation is to remove the non-citizen from Australia as soon as reasonably practicable."
[5](2021) 285 FCR 43.
[6]BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 301 FCR 229 at 253-254 [109].
The appeal to this Court
The appellant's case had originally sought to avoid the impact of EFX17 in two ways. First, the appellant sought to do so on the ground that there was a distinction to be drawn between a person having no legal capacity for the purpose of responding to the Minister's s 501CA invitation and a person who merely had a difficulty or difficulties in undertaking that task. That distinction is discussed below. Secondly, he observed that the phrase "as soon as practicable" in s 501CA(3) had not been the subject of any argument in EFX17. He persisted with his contention, made below, that this phrase controls the timing of when the Minister's invitation should be made. In that respect, he submitted that it could not be practicable to invite the appellant here to make submissions when he lacked the capacity to do so. What is "practicable" connoted an inquiry by the court into the ability of the appellant to provide a meaningful response. EFX17 was thus distinguishable.
During the course of oral argument before this Court further possible grounds emerged. With the leave of the Court, an amended notice of appeal was filed shortly thereafter. His first ground of the amended notice of appeal was wholly new and contended that in circumstances where on 1 December 2021 the appellant lacked "decision-making capacity", the Full Court of the Federal Court erred in failing to find:
(a)that the delegate did not on 1 December 2021 discharge their duty under s 501CA(3) to give written notice to the appellant of the decision to cancel his visa, and to invite the appellant to make representations to the Minister (ground 1(a)); or
(b)no duty existed on 1 December 2021 to give written notice to the appellant of the decision to cancel his visa and to invite the appellant to make representations, and that duty was not enlivened until the appointment of his guardian on 11 January 2022 (ground 1(b));
and in either case that the Full Federal Court erred in not finding that the Minister had thereby failed to discharge his duty under s 501CA.
Neither Judge Mansini nor the Full Court of the Federal Court was ever asked to consider this ground.
The appellant's second ground of appeal remained that the Minister had the power to reissue the notification and should now do so (ground 2).
For the reasons that follow, ground 1(a) should be allowed.
Legal incapacity
Originally, the control of a "lunatic" and of the "lunatic's estate" was the subject of royal prerogative.[7] It was a "parental and protective" jurisdiction or power to do what was for the benefit of the "lunatic".[8] That protective obligation of the State should not be underestimated. The prerogative was eventually delegated to the Court of Chancery. Thus, in Lord Falkland v Bertie, Lord Somers LC said:[9]
"In this court there were several things that belonged to the King as Pater patriae, and fell under the care and direction of this court, as charities, infants, ideots, lunatics, &c., afterwards such of them as were of profit and advantage to the King, were removed to the Court of Wards by the statute; but upon the dissolution of that court, came back again to the Chancery".
[7]Prerogativa Regis, cc 11, 12 (17 Edw 2, st 1, cc 9, 10, Ruff).
[8]Theobald, The Law Relating to Lunacy (1924) at 4.
[9](1696) 2 Vern 333 at 342 [23 ER 814 at 818]; see also Holdsworth, A History of English Law, 2nd ed (1936),vol VI at 648; Carseldine v Director of Department of Children's Services (1974) 133 CLR 345 at 350-351.
The nature of the prerogative was described by Edelman J in Perpetual Trustee Co Ltd v Cheyne as follows:[10]
"The prerogative was virtually unlimited. Sir Edward Coke said of a person falling within the jurisdiction of the Chancery court that 'there is no expectation, but that he, during his life, will remain without discretion and use of reason, the law has given the custody of him, and all that he has, to the King': Beverley's Case of Non Compos Mentis (1603) 4 Co Rep 123b at 126; (1603) 76 ER 1118 at 1124. The scope of the prerogative power has never been limited: Re Eve (1986) 31 DLR (4th) 1 at 16 per La Forest J. It is based on the care that the King has for those who cannot take care of themselves: Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; (1827) 38 ER 236 at 243 per Lord Eldon LC; Health and Community Services, Secretary, Department of v JWB (Marion's Case) (1992) 175 CLR 218 at 258 per Mason CJ, Dawson, Toohey and Gaudron JJ."
[10](2011) 42 WAR 209 at 222 [61].
Two observations should be made. First, it is a fundamental principle that, in order for a person to do a legally effective act, they must have the necessary legal capacity to do so.[11] Secondly, there is a presumption that every person of full age has the mental capacity to manage their own affairs. The burden of proving to the contrary rests with those asserting incapacity.[12] These principles, generally speaking, apply to a step taken in litigation. Thus, court rules have been developed over time, to ensure that steps in litigation are taken by or against persons without legal capacity (whether minors or persons with a disability) through a representative, being a "next friend", "tutor", "guardian ad litem", "litigation guardian" or "litigation representative", or some other third person with responsibility for the incapacitated person's care and/or the conduct of their affairs. Thus, r 21.08.1 of the High Court Rules 2004 (Cth) provides that a person under disability shall commence or defend a proceeding by litigation guardian. The jurisdiction to make such rules derives from the parens patriae jurisdiction of the Court of Chancery.
[11]Masterman-Lister v Brutton & Co [Nos 1 and 2] [2003] 1 WLR 1511 at 1533 [57]; [2003] 3 All ER 162 at 182; Goddard Elliott v Fritsch [2012] VSC 87 at [547]; Vishniakov v Lay (2019) 58 VR 375 at 385 [30]; Burnett v Browne [No 2] [2021] FCA 373 at [3].
[12]Masterman-Lister v Brutton & Co [Nos 1 and 2] [2003] 1 WLR 1511 at 1520 [17]; [2003] 3 All ER 162 at 169; Murphy v Doman (2003) 58 NSWLR 51 at 58 [36]; L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432 at 438-439 [26]; Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398 at 414-415 [66]-[68]; Slaveski v Victoria (2009) 25 VR 160 at 182-183 [25]-[26]; A v City of Swan [No 5] [2010] WASC 204 at [66]; Goddard Elliott v Fritsch [2012] VSC 87 at [546]; Vishniakov v Lay (2019) 58 VR 375 at 385 [30].
That a lack of capacity remains a central concern of the courts is reflected in a number of other related principles. For example, it is established that the involuntary detention of individuals who are mentally unwell is legitimate; such detention may be characterised as protective of the person and thus as non-punitive.[13]
[13]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 28.
The common law's concern to protect those who, for whatever reason, lack capacity is reflected in the provisions of the Guardianship Act. Pursuant to s 22 of that Act, and generally speaking, a person may apply to VCAT for a guardianship order that appoints a guardian for a person with a "disability". The term "disability" is defined in s 3(1) to mean "neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability or dementia". Pursuant to s 30(2), relevantly, VCAT cannot appoint a guardian or an administrator unless it is satisfied that the person does not have "decision-making capacity" in relation to a number of matters. The phrase "decision-making capacity" is defined in s 5(1) as follows:
"For the purposes of this Act, a person has capacity to make a decision in relation to a matter (decision-making capacity) if the person is able—
(a)to understand the information relevant to the decision and the effect of the decision; and
(b)to retain that information to the extent necessary to make the decision; and
(c)to use or weigh that information as part of the process of making the decision; and
(d)to communicate the decision and the person's views and needs as to the decision in some way, including by speech, gesture or other means."
The assumption of legal capacity in s 501CA
The appellant's original reliance upon the phrase "as soon as practicable" and the notion of practicability, with respect, is misconceived for the reasons given by the Full Court below. The phrase "as soon as practicable" is bound up with the act of giving notification. As this Court observed in EFX17, the word "give" connotes the physical performance of an act, namely service of the notification, as distinct from the consequences which follow thereafter.[14] As soon as it becomes practicable for that act to be performed, following the cancellation of a visa, the duty on the Minister arises to give notification. In other words, the phrase "as soon as practicable" is directed only at the physical step of giving notification and no more.
[14]Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 125 [23].
The appellant's lack of legal capacity on 1 December 2021 is otherwise dispositive of this appeal in the sense contended for in new ground 1(a). That is because the requirement to "give" the notice and "invite" the “person" to make representations presupposes that the person has the legal capacity to make such decisions as are necessary to respond to the notice and the invitation or to empower someone to do so on their behalf. In other words, the giving of the notice, particulars and invitation under s 501CA(3) will not be legally efficacious if those documents are given to a person who lacks legal capacity to make decisions with respect to the notice and invitation at the time the notice and invitation was delivered to them, including lacking the capacity to grant an enduring power of attorney or to apply for a guardian to be appointed in relation to the notice and invitation. In such a case, there is no reason to doubt that service will be effective if the person has a validly appointed guardian who has power to make representations to the Minister on the person's behalf. In such a case, notification should be made to that guardian. There are a number of reasons for this conclusion.
The foundations for the assumption in s 501CA
The first is that Parliament must be taken to have known that, under our legal system, the law generally requires that a person must have sufficient legal capacity if that person is to do a legally effective act or make a legally effective decision.[15] This is a principle that is at least as fundamental and well-established as common presuppositions in legislation such as a requirement of intention or knowledge for statutory offences or, as the Minister accepted, that the factual exercise of authority would be free from fraud so that the exercise of fraud could disable an authority from "the due discharge of its imperative statutory functions".[16] Like an assumption of absence of fraud, the assumption of legal capacity does not depend on the knowledge of the Minister. The statutory regime thus assumes, if it is to be effective, that there is a "person" (including a guardian of a person) with legal capacity to whom the notice may be given and who is then invited to "make representations". The invitation would be pointless if it could never be answered in a way which was legally efficacious.
[15]Masterman-Lister v Brutton & Co [Nos 1 and 2] [2003] 1 WLR 1511 at 1533 [57]; [2003] 3 All ER 162 at 182; Goddard Elliott v Fritsch [2012] VSC 87 at [547]; Vishniakov v Lay (2019) 58 VR 375 at 385 [30]; Burnett v Browne [No 2] [2021] FCA 373 at [3].
[16]SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at 206 [51].
The language of s 501CA
Given the concern of the law to protect those who lack capacity, it would require very clear language to support a conclusion that Parliament intended that valid invitations could be made to persons who have no legal capacity. No such language may be found in s 501CA. Instead, the composite phrases "give the person, in the way that the Minister considers appropriate" and "invite the person to make representations to the Minister", in the context of the entire language of s 501CA(3), must be construed as referring to giving notification to a person with relevant legal capacity and to inviting such a person to make representations.
In oral argument, senior counsel for the Minister said that the foregoing read too much into the language of "give", "invite" and "person". The "person" who is identified in s 501CA is merely the "person" identified in s 501CA(1); namely, a person whose visa has been cancelled. This necessarily included the appellant. Under the statutory scheme, it was said, such a "person" must receive the notice under s 501CA(3) as soon as is practicable following cancellation of a visa. The Minister has no room, it was suggested, to do otherwise.
With respect, that submission is misconceived. It is true that a person to whom a notice is given under s 501CA(3) must necessarily be a person for the purposes of s 501CA(1). But, for the reasons set out above, the duty to give a notification under s 501CA(3) only arises where there is a person who also has the legal capacity to respond to the Minister's invitation to make representations. Construed correctly, the language of s 501CA(3) as a whole is not engaged when the person whose visa has been cancelled is not legally capable of taking any step until a guardian is appointed.
The Minister also submitted that the proposition that an act taken by a person without legal capacity has no legal effect has never been an absolute proposition, especially where the step benefits the person in question. For example, it was said that if court proceedings terminate in favour of a child (who is not represented by a friend or guardian), the child may have the benefit of that.[17] Moreover, and correctly, the significance of a lack of capacity must be answered by a consideration of statutory intent. Thus, for example, in Odhiambo v Minister for Immigration and Multicultural Affairs it was held that it was competent for a minor to seek review of a decision of the Refugee Review Tribunal in the Federal Court of Australia without the involvement of a next friend.[18] Here, it was said, s 501CA was intended to confer a benefit on a person who is, once served, given an opportunity to have a decision to cancel their visa revoked. As such, the provision should be read so that this benefit is preserved, and not defeated, in the case of a person lacking capacity.
[17]SBAH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 126 FCR 552 at 553 [1]; Fernando v Minister for Immigration and Citizenship [No 9] [2009] FCA 833 at [16]; CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699 at [178].
[18](2002) 122 FCR 29 at 50 [105]-[106]; see also SFTB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 222 at 224-225 [7], [10]-[11].
It may be accepted that the legal inefficacy of acts taken by someone without capacity may not be absolute and that legal incapacity may extend to some acts and not others.[19] It may also be accepted that a statute may expressly or by implication displace an assumption such as capacity.[20] But the language of s 501CA, read with an assumption of capacity, does not deny the benefit of making representations to a person without capacity. Rather, the language requires that the benefit be provided to a person with capacity or, if the person lacks capacity, to an appointed representative of that person.
[19]Gibbons v Wright (1954) 91 CLR 423 at 437-438; Adamson v Enever (2021) 9 QR 33 at 38 [6]. See also Slaveski v Victoria (2009) 25 VR 160 at 183-184 [26]-[31]; In the Estate of Park, Decd; Park v Park [1954] P 112 at 136.
[20]Haines v Leves (1987) 8 NSWLR 442 at 449-451; Jaffari v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 10 at 14 [14].
Statutory context
The foregoing construction is supported by the statutory context and purpose of s 501CA. Statutory context includes s 501(3A) and (7)(e) and (f), which are set out above. It will be recalled that paras (e) and (f) address criminal offending where there has been unsoundness of mind or insanity, or where a court has found that a person is not fit to plead. Whilst each category of case can result in there being a person who has a "substantial criminal record" for the purposes of the character test in s 501(6), neither category can satisfy s 501(3A); they are excluded from its reach. Consequently, such offending can never trigger an application of s 501CA. This statutory regime is a recognition by Parliament that individuals who lack legal capacity at the time of offending, or at the time of their criminal trial, should not be subject to the s 501CA regime. Given this statutory context, it would be anomalous to conclude that the Minister can efficaciously give a notification, for the purposes of s 501CA(3), to a person who equally lacks legal capacity.
The fact that the Act elsewhere addresses in express terms the case of a person who lacks legal capacity justifies no contrary conclusion. For example, s 261AM refers to a "person who is an incapable person". Such a person is only required under Div 13AA of Pt 2 of the Act to provide a "personal identifier" of a certain kind.[21] If anything, these express acknowledgements by Parliament of the fact that the provisions of the Act may need to operate in relation to a person who lacks capacity reinforce the construction of s 501CA(3) set out above.
[21]Other examples of the Act dealing expressly with the issue of capacity include ss 48(1A), 48A(1AA), 252B and 501E(1A).
The purpose of s 501CA
The foregoing is also supported by the manifest purpose of s 501CA. That purpose is to provide procedural fairness to a person whose visa has been mandatorily cancelled pursuant to s 501(3A), in circumstances where, by reason of s 501(5), the rules of natural justice do not apply to such a decision.[22] Section 501CA was introduced into the Act by the Migration Amendment (Character and General Visa Cancellation) Act2014 (Cth). The Explanatory Memorandum which accompanied the Bill which became that Act expressly states that the purpose of s 501CA is to afford "natural justice".[23] In relation to s 501CA(3) the Memorandum states:[24]
"The requirement to give notice to the person and invite the person to make representations about revocation of the decision to cancel allows the person the opportunity to satisfy the Minister or delegate that the person passes the character test, or that there is another reason why the original decision should be revoked."
[22]Picard v Minister for Immigration and Border Protection [2015] FCA 1430; Dunn v Minister for Immigration and Border Protection (2018) 267 FCR 246; Stowers v Minister for Immigration and Border Protection (2018) 265 FCR 177; Karan v Minister for Home Affairs [2019] FCAFC 139; Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 89; QKJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 233; EXT20 v Minister for Home Affairs (2022) 291 FCR 55.
[23]Australia, House of Representatives, Migration Amendment (Character and General Visa Cancellation) Bill 2014, Explanatory Memorandum at 15 [84].
[24]Australia, House of Representatives, Migration Amendment (Character and General Visa Cancellation) Bill 2014, Explanatory Memorandum at 16 [92] (emphasis added).
The reference to "the opportunity to satisfy the Minister" is important. Where a person is simply legally unable to avail themselves of that opportunity because of a failure of capacity, the very rationale of the provision is wholly defeated; its operation, in such a case, would be stultified. In short, the section provides for an exchange on the part of the Minister and a relevant applicant; the Minister gives and invites, and the person makes representations in accordance with the invitation. Parliament cannot have intended that such a scheme is fulfilled when only one half of the exchange – the giving and inviting – can be performed and no more.
EFX17
The decision of this Court in Minister for Immigration and Border Protection v EFX17[25] was a key feature of the reasoning below and, before us, was heavily relied upon by the Minister. EFX17 has nothing to say about the operation of s 501CA(3) in circumstances of legal incapacity of the person who receives a notice.
[25](2021) 271 CLR 112.
Like the appellant here, the respondent's visa in EFX17 had been cancelled pursuant to s 501(3A) of the Act after he had been convicted of causing grievous bodily harm. Again, like the appellant here, the respondent in that case had been given a notification pursuant to s 501CA(3) inviting him to make representations about revocation. This was received whilst he was in prison. He gave formal notification of the receipt of the notification. However, he only spoke broken English, his ability to read or write in English was limited, and he had been suffering from a schizophrenic illness due to substance abuse and certain traumatic events in the past. It appeared that he was confused about the contents of the notification. He made no response.[26]
[26]Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 119-121 [3]-[12].
The respondent in EFX17 sought, amongst other remedies, a declaration that the delivery of the notification did not comply with s 501CA(3) because of his inability to understand its contents.[27] The Full Court of the Federal Court of Australia upheld the respondent's claim, which was based upon the words "give" and "invite" in s 501CA(3).[28] Greenwood J decided that it should be implied that the requirement to "give" the notification and to "invite" the respondent to make representations about revoking the cancellation of his visa imported an "irreducible minimum standard". That standard had not been met given the respondent's disadvantages.[29] Rares J agreed. His Honour decided that it should be implied that it was essential that any invitation to give reasons be "intelligible" in fact to the person to whom it had been given.[30]
[27]Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 122 [16]-[17].
[28]Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 122-123 [17]-[18]; see also EFX17 v Minister for Immigration and Border Protection (2019) 273 FCR 508.
[29]Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 122-123 [18]; EFX17 v Minister for Immigration and Border Protection (2019) 273 FCR 508 at 528 [89]-[90], 538-540 [133]-[137].
[30]Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 123 [19]; EFX17 v Minister for Immigration and Border Protection (2019) 273 FCR 508 at 547-548 [173]-[175].
This Court unanimously overturned the decision of the Full Federal Court. Importantly, whilst in its reasons this Court referred to the "respondent's incapacity to understand" the notification, that was not a reference to any claimed lack of legal capacity.[31] It was a reference to an inability to comprehend the notification due to the respondent's difficulties with English. There was never any suggestion, unlike in this appeal, that the respondent in EFX17 suffered from an actual lack of legal capacity, such that he could only respond to the notification through a validly appointed attorney or guardian.
[31]Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 122 [17].
This Court rejected any need for an "irreducible minimum standard" of giving the notification or that it was essential that the invitation be "intelligible in fact". The Court said:[32]
"The verbs 'give' and 'invite' connote only the performance of an act rather than the consequences of that performance such as the recipient's capacity to comprehend the content of the English notice given or the English invitation made."
[32]Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 125 [23].
The Court also observed that the phrase "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" of the notification.[33] Whilst it was accepted that there were grave consequences for a person who could not understand a notification, this nonetheless did not "provide sufficient foundation" for the sort of implication drawn by the majority of the Full Federal Court.[34] Any such implication would "require consideration of the extent of the capacity of a recipient to understand material provided, identification of how limitations could be overcome, and the taking of steps to do so".[35] That in turn would lead to "administrative difficulties" which could not have been intended.[36]
[33]Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 126 [25].
[34]Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 128 [30].
[35]Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 127 [28].
[36]Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 127 [28].
In EFX17 the respondent had legal capacity; his representations, if they had been made, and regardless of their content, would have been legally effective. In that respect, the appellant's contention in this appeal that a legally meaningful distinction between a person who lacks legal capacity to take some step or particular action, and a person who might have a difficulty, or experience difficulties, in taking that step or action, should be accepted.
Had the respondent in EFX17 made representations, regardless of their content, they would have constituted "representations" made "in accordance with the invitation" for the purposes of s 501CA(4), and thus would have triggered a duty on the Minister to consider those representations and then to decide whether the respondent passed the character test or whether there was another reason to revoke the cancellation decision.[37] Moreover, whilst disadvantaged in the sense described above, there was no suggestion that the respondent lacked the ability to seek assistance. He could, for example, have sought a translation of the notification sent to him, at least in part. In that respect, the argument in EFX17 was limited to the construction of the words "give" and "invite". It was not concerned with the composite phrases "give the person, in the way that the Minister considers appropriate" and "invite the person to make representations to the Minister" and the entire language of s 501CA(3). Those composite phrases direct attention to the legal capacity of the person to be given a notification which invites them to make representations.
[37]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at 406 [13]; Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at 598-599 [24].
Conclusion
The giving of the notification to the appellant on 1 December 2021 wholly miscarried because he lacked the legal capacity to make decisions about it, including the making of representations in accordance with its invitation to do so. It was legally inefficacious. The fact that the Minister and the Department did not know of this is irrelevant. The Minister had, and has, the duty in s 501CA(3) but the legal incapacity of the appellant to make representations meant that the Minister could not discharge that duty until the appellant obtained capacity or the Minister (or any other person) arranged for the appointment of a guardian for the appellant for the purposes of making representations. It follows that the Minister has yet to discharge his duty to give notification in accordance with s 501CA(3). As the appellant now has a guardian appointed for his benefit, the Minister may discharge that duty by giving notification to the appellant's guardian.
Other grounds
For the reasons above, the better view is that the duty in s 501CA(3) existed on 1 December 2021, but, for the reasons set out above, it has yet to be discharged. Ground 1(b) cannot be accepted. Given the conclusion concerning ground 1(a), it is not necessary to consider ground 2.
Disposition
Certiorari should issue to quash the notice and the invitation. The appellant also sought an order for mandamus. A writ of mandamus should issue because the Minister insisted on the validity of the notice and is therefore yet to discharge his duty to give notice in accordance with s 501CA(3).
The orders of the Court should be:
(1) Appeal allowed with costs.
(2)Set aside the orders of the Full Court of the Federal Court of Australia made on 19 December 2023 and, in their place, order that:
(a) the appeal be allowed with costs; and
(b)orders 2 and 3 of the Federal Circuit and Family Court of Australia (Division 2) made on 7 June 2023 be set aside and, in their place, order that:
(i)a declaration issue that the respondent is obliged to give BIF23, or if applicable his guardian, a written notice and invitation under s 501CA(3) of the Migration Act 1958 (Cth) in relation to the decision made on 24 November 2021 by the respondent's delegate to cancel BIF23's Class AH Subclass 101 Child (Permanent) visa ("the Decision");
(ii)a writ of certiorari issue to quash the notice and invitation purportedly given to BIF23 on 1 December 2021 under s 501CA(3) of the Migration Act 1958 (Cth);
(iii)a writ of mandamus issue directed to the respondent requiring the respondent to give BIF23 (by his litigation guardian, the Public Advocate) a written notice and invitation under s 501CA(3) of the Migration Act 1958 (Cth) in relation to the Decision; and
(iv) the respondent pay BIF23's costs.
JAGOT AND BEECH-JONES JJ. Two questions determine the outcome of this appeal. The first is a question of law. It is whether a requisite mental incapacity of a person whose visa has been subject to mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth) at the time the Minister gives the person written notice of that cancellation and particulars of the relevant information ("the notice") and invites the person to make representations about the cancellation of the visa under s 501CA(3), if the person at that time also did not have a validly appointed guardian,[38] means that the giving of the notice is vitiated and the Minister's duties under that latter provision remain constructively unperformed.[39] For these purposes, and assuming that the person at the relevant time did not have a validly appointed guardian,[40] a requisite "mental incapacity" is one which, because of its substantive effect on a person's ability to understand, act, or make decisions, gives rise to a "legal incapacity" with respect to s 501CA(3). As explained further below, the nature and degree of "mental incapacity" that is required before it will be of legal significance for the purposes of s 501CA(3) is to be understood by reference to the statutory context of the mandatory cancellation regime. The second question is a question of fact. It is whether the appellant was subject to a requisite mental incapacity giving rise to a legal incapacity with respect to s 501CA(3) on 1 December 2021, being the day on which the Minister gave the appellant the notice and invited the appellant to make representations in response.
[38]Further, the guardian must have had legal authority to make decisions on the person's behalf with respect to the visa cancellation. The appellant did not have such a person appointed at the time of the giving of the notice and the making of the invitation on 1 December 2021. A relevant guardianship order in respect of the appellant was only made on 11 January 2022.
[39]The Minister is empowered to delegate the performance of the duty in s 501(3A) and associated duties in s 501CA(3): s 496 of the Migration Act 1958 (Cth). See also Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at 129 [34].
[40]In the event the person did have a validly appointed guardian, the existence of a mental incapacity would be immaterial.
Those two questions did not emerge as determinative until the hearing in this Court. The arguments put to the primary judge[41] and the Full Court of the Federal Court of Australia[42] were different and did not raise these questions. The arguments put to this Court were also different until, during the hearing, the possibility of the appellant's lack of mental capacity (as a legal and not a psychiatric construct) at the date of the giving of the notice under s 501CA(3) was raised as possibly analogous in its vitiating consequence to a third-party fraud on the decision-maker.[43] This caused the appellant to file an amended notice of appeal after the hearing framing the two questions above in several ways. The Minister properly took no objection to the filing of the amended notice of appeal given that both parties had been heard on the new issues.
[41]BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 377 FLR 409.
[42]BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 301 FCR 229.
[43]SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.
For the following reasons, the answer to both questions is "yes". Accordingly, the appeal must be allowed and consequential orders made.
Statutory scheme
Section 501(3A) of the Migration Act provides that:
"The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory."
Sections 501(6) and 501(7) relevantly state:
"Character test
(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
...
(e) a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child; or
(ii)found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or
...
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
...
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution."
Ultimately, the evidence is sufficient to establish on the balance of probabilities that, on 1 December 2021, the appellant was subject to a requisite mental incapacity in the sense that he could not: (a) understand the nature of the notice and the invitation to make representations about the cancellation of the visa; (b) make representations about the cancellation of the visa in response to the invitation; and (c) understand the substantial effect of the notice and invitation, and the making of representations, on him. The evidence shows that the appellant was assessed by different psychiatrists on 17 and 23 December 2021 who both considered that, as a result of his schizophrenia/schizoaffective disorder, the appellant was seriously delusional, including about his possible deportation, had no insight into his circumstances (which would include the circumstances of his visa cancellation), and was suffering visual hallucinations, and that his delusions "significantly impact[ed] on [the] weighing of information as part of [his] decision‑making process". Against this, the references to the appellant having been able to "ask for help" or give "verbal consent" to actions by the social worker and VLA, given the context of the social worker's attempts to obtain a guardianship order in respect of the appellant, are of little weight.
In these circumstances, it should be found on the balance of probabilities that the appellant, on 1 December 2021, by reason of then being subject to a requisite mental incapacity as described, lacked the legal capacity that is an essential or inviolable underlying predicate of the operation of s 501CA(3) of the Migration Act.
Consequence and orders
The consequence of the appellant having been subject to a requisite mental incapacity on 1 December 2021, coupled with the absence of a validly appointed guardian with authority to make relevant legal decisions on the appellant's behalf at that time, is that the Minister's giving of the notice and invitation to the appellant on 1 December 2021 is vitiated. The duties under s 501CA(3) remain constructively unperformed.
The orders set out by Gordon A-CJ, Edelman and Steward JJ should be made.