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Monday, 13 October 2008
Page: 5791


Senator CONROY (Deputy Leader of the Government in the Senate) (4:44 PM) —I table a revised explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Migration Amendment (Notification Review) Bill 2008 amends the Migration Act 1958 by introducing a series of changes that will operate to clarify the way the Department of Immigration, the Migration Review Tribunal and the Refugee Review Tribunal communicate with their clients.  These amendments are the initial steps in a broader series of measures that are being contemplated by the Government. 

The Migration Act 1958 (the Act) and the Migration Regulations 1994 (the Regulations) contain complex provisions dealing with the requirements for notifying clients about important matters such as decisions on visa applications and visa cancellations. 

These provisions cover the content of the notice, identify who must be notified, where the notice must be sent, when the notice is taken to have been received and by what method the notice may be dispatched. 

These requirements can be difficult for staff to apply and provide fertile ground for the courts to find notification defects.  Court challenges based on technical errors in the notification process are regularly pursued by clients seeking to find a way to delay the resolution of their cases.

There have been a series of cases over the past several years where the courts have identified technical defects in notification that have created large legacy caseloads which have proved difficult, if not impossible to address through litigation or administrative reforms.  For example, the case of VEAN of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 311 found that the envelope containing a notification letter had to be addressed to the applicant’s “Authorised Recipient”, not to the applicant “C/O the Authorised Recipient”.  This decision in late 2003 potentially affected thousands of cases going back to 2001.   

These adverse notification decisions can create a situation where subsequent action taken in good faith by officers in respect of a client may actually be unlawful, because the client was not properly notified of a departmental or tribunal decision and therefore their bridging visa (or a cancelled substantive visa) may remain in effect.

The Commonwealth Ombudsman, in his report “Notification of Decisions and Review Rights for Unsuccessful Visa Applicants” of December 2007, drew attention to the difficulties with the notification provisions and their potential to result in the unlawful detention of clients. 

The bill has three overarching sets of amendments:

1.   Provide, in cases where other notification provisions would not apply to a minor, that where the Minister (or MRT/RRT) forms a reasonable belief that an individual has care and responsibility for a minor, then the Minister (for primary decisions) or the Tribunal (for MRT/RRT decisions) may communicate with that person (instead of the minor) to notify that individual of a decision of the Minister or Tribunal about the minor.

2.   Provide that substantial compliance with the required contents of a notification document is sufficient unless the visa applicant is able to show the error or omission in the document causes them substantial prejudice; and

3.   Provide that the deemed time of notification provisions will operate despite non-compliance with a procedural requirement for giving a document to an individual, where the individual has actually received the document, unless the individual is able to show they received the document at a later date, in which case they will be taken to have received the document at that date.

These three sets of amendments will ensure that notification will be legally effective and provide certainty regarding future action based on notification, while still maintaining fair and reasonable dealings with the Department’s and the Tribunals’ clients.

The first set of amendments relate to communication with minors through a person or an organisation that has care and responsibility for the minor. Unless certain specific provisions apply, which deal with a client appointing an authorised recipient, or notification of clients that make combined applications,  the Act currently requires correspondence or notices be sent to the individual client for the notification to be effective, even where the client would be too young to understand what the notification is about.  This amendment will enable notification to be effected on a minor, defined as someone under 18, where the Minister or his delegate or the relevant merits review tribunal has a reasonable belief that the recipient of the notification has the day to day care and responsibility for the minor.

The recipient in this instance could be an individual, 18 years of age or over, who has the day-to-day care and responsibility for the minor. The recipient could also be an individual who works for or in an organisation and has day to day care for the minor.  The proposed amendment produces the outcome that is most likely to result in the person who receives the notice about the minor also acting on it.

This is preferable to sending a notice to, say, a parent who is estranged from the minor or who is not present in Australia and who may not be willing or able to act in the interests of the minor.  In the event that no-one with care and responsibility for the minor can be clearly identified, it will still be possible to send the notification directly to the minor.

The second set of amendments relates to substantial compliance with the required contents of a notification document.  Strict compliance with arguably insignificant details regarding the content of notification required by the courts has caused the department to concede or lose a number of court cases on minor technicalities.  The VEAN case, as previously mentioned, is an example and there are other similar cases. In SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 a question arose from the inclusion of an incorrect postcode on two letters sent to a visa applicant by the Refugee Review Tribunal which were received and acted on by the visa applicant.  The Tribunal affirmed the delegate’s decision to refuse the protection visa, considering that there had been no practical injustice and the applicant had lost no opportunity to advance his case.  There were also cogent reasons for concluding that a postcode is not part of an address and therefore the use of the incorrect postcode did not result in non-compliance with the relevant section in the Act.

This is a case where the court was satisfied that the oversight could have had no effect upon the Tribunal’s decision: no hearing was missed; no invitation to comment left unanswered; no delay caused; no prejudice suffered. The court noted that to set aside the Tribunal’s decision and require reconsideration of the applicant’s claims would be to allow the triumph of mere technicality over substance.

While in this instance the case law is of assistance in determining that a minor error, such as an incorrect post code, may not render notification ineffective, the bill seeks to clarify this issue and put beyond doubt the possibility of further, related, appeals on similar factual scenarios.

This amendment will ensure that substantial compliance with the required content of a notice will be sufficient to effect notification.  Minor technical errors in the content of the notice will not render the notification ineffective unless the applicant can show that the error or omission substantially prejudices him or her.

The third set of amendments deal with deemed and actual notification and relate to the methods that the Department and the relevant tribunals use when communicating with clients.  Currently, the courts require strict compliance with the statutory notification procedures in order to rely on the deemed notification provisions.  Where there is an error in the notification procedures, clients may argue that the deemed receipt provisions do not apply, even when there is evidence that they have actually received the correspondence or notice. 

This amendment will provide that where there has been an error in notification such that the deeming provision will not apply, but there is evidence that the client actually received the document (for example they responded to the notice), then notification will be taken to have occurred in accordance with the deeming provisions or at a later date if the client can show the notice was actually received at that later date.

This will overcome difficulties created through the requirement for strict compliance with technical notification procedures but also ensure clients are treated fairly and reasonably.

In conclusion can I reiterate that these amendments will achieve a notification regime that is simpler, provides greater clarity and consistency, and is sufficiently flexible to respond to individual circumstances. This streamlining of notification requirements will reduce complexity, and deliver more consistent, fair and reasonable outcomes to clients.

I commend the bill to the chamber.

Ordered that further consideration of the second reading of this bill be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.