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Migration Amendment (Notification Review) Bill 2008

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2008

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

MIGRATION AMENDMENT (NOTIFICATION REVIEW) BILL 2008

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Citizenship,

Senator the Hon. Chris Evans)

 

 



MIGRATION AMENDMENT (NOTIFICATION REVIEW) BILL 2008

 

OUTLINE

 

Both the Migration Act 1958 (“the Act”) and the Migration Regulations 1994 (“the Regulations”) contain numerous provisions dealing with the requirements for notification in specific circumstances.  These cover who must be notified, the content of the notice and procedures for the method used for the deemed time of notification provisions to apply.  As these provisions are highly prescriptive, they create fertile ground for the courts to find defects in notification.  Technical errors can also be relied upon by those clients seeking to delay resolution of their cases despite no apparent prejudice as a result of the defect.

 

The purpose of the Migration Amendment (Notification Review) Bill 2008 (“the Bill”) is to clarify and provide greater certainty in some notification procedures to minimise errors and ensure visa applicants and visa holders are effectively notified of matters relevant to their dealings with the Department of Immigration and Citizenship (“the Department”).  The amendments seek to balance the need for certainty against the need for applicants and visa holders to not be prejudiced by errors or omissions in relation to the content of documents or notices or the manner in which they are “given”.

 

This Bill represents the initial step in the process of a broader review of notification under the Act.

 

The amendments in part seek to address a series of cases where the Federal Court and Federal Magistrates Court have identified technical defects in notification that have created large caseloads which have proved difficult, if not impossible, to address through further litigation or administrative reforms.  One such example is the case of VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311, which found that the envelope containing a notification letter had to be addressed to the non-citizen’s “Authorised Recipient” not the non-citizen “C/O the Authorised Recipient”.  This decision in late 2003 potentially affected thousands of cases going back to 2001.

 

The amendments will provide greater clarity and consistency in communication between the Department and its clients.  This is for both the primary decision maker’s decisions and for those of the merits review bodies, specifically, the Refugee Review Tribunal (“the RRT”) and the Migration Review Tribunal (“the MRT”). 

 

A decision of the RRT that was subject to judicial review is illustrative.  The case of SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 (“the SZKGF case”) arose from the inclusion of an incorrect postcode on two letters sent to a visa applicant by the Tribunal which were received and acted on by him.  While the Tribunal affirmed the delegate’s decision to refuse the protection visa, the outcome may be less certain in other cases.

 

In the SZKGF case, the court considered that there had been no practical injustice and the applicant had lost no opportunity to advance his case.  In any event there were cogent reasons for concluding that a postcode is not part of the address and therefore the use of the incorrect postcode did not result in non-compliance with the Migration Act.

 

This is a case where the court was satisfied that any breach 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 this case law is of assistance in determining that a minor error, such as an incorrect post code, may not constitute a legal error in the notification process, this Bill seeks to put these sort of questions beyond doubt.  The amendments will provide greater certainty that notification has occurred and avoid technical arguments before the tribunals and courts. 

 

The provisions are, however, tempered by the fact that the recipient will have an opportunity to show that the defect in the content of the notice or the giving of the notice caused substantial prejudice.

 

The Bill includes the following three key changes to the notification regime:

 

·          Provide, in cases where other notification provisions would not apply to a minor, that where the Minister (or MRT/RRT member) 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 ;

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

·          Provide 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.



 

FINANCIAL IMPACT STATEMENT

 

These amendments will have no negative financial impact.  These changes could in fact result in longer term savings due to a decrease in litigation raising issues concerning the effectiveness of a purported notification.



 

MIGRATION AMENDMENT (NOTIFICATION REVIEW) BILL 2008

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1          Short Title

 

1.                   Clause 1 provides that the short title by which this Act may be cited is the Migration Amendment (Notification Review) Act 2008 .

 

Clause 2          Commencement

 

2.                   Subclause 2(1) contains a table that sets out the commencement provisions of the Act.  The table provides that:

 

·                      Sections 1 to 3 and anything in the Act not elsewhere covered by the table will commence on the day on which the Act receives the Royal Assent;

 

·                      Schedule 1, items 1 and 2 will commence on a single day to be fixed by Proclamation.  However, if any provision(s) do not commence within the period of 6 months beginning on the day on which the Act receives the Royal Assent, they will commence on the first day after the end of that period.

 

·                      Schedule 1, item 3 will commence on the later of:

(a)     immediately after commencement of the provision(s) covered by table item 2; and

(b)    immediately after the commencement of item 13 of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 2008

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

        

·                      Schedule 1, item 4 will commence at the same time as the provisions covered by table item 2.

 

·                      Schedule 1, item 5 will commence the later of:

(a)     immediately after commencement of the provision(s) covered by table item 2; and

(b)    immediately after the commencement of item 13 of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 2008

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

 

·                      Schedule 1, items 6 to 12 will commence at the same time as the provision(s) covered by table item 2.

 

·                      Schedule 1, item 13 will commence the later of:

(a)     immediately after the commencement of the provision(s) covered by table item 2; and

(b)    immediately after the commencement of item 26 of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 2008.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

 

·                      Schedule 1, item 14 will commence at the same time as the provision(s) covered by table item 2.

 

·                      Schedule 1, item 15 will commence the later of:

(a)     immediately after the commencement of the provision(s) covered by table item 2; and

(b)    immediately after the commencement of item 26 of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 2008.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

 

·                      Schedule 1, items 16 to 29 will commence at the same time as the provision(s) covered by table item 2.

 

3.                   The note in subclause 2(1) makes it clear that the table only relates to the provisions of the Act as originally passed by both Houses of the Parliament and assented to.  The table will not be expanded to deal with provisions inserted into this Act after it receives the Royal Assent.

 

4.                   Subclause 2(2) provides that column 3 of the table in subclause 2(1) is for additional information that may be included in any published version of the Act but which is not part of the Act (for example, the actual date of commencement of the provisions).

 

5.                   The commencement provisions are drafted so that this Act ties in with the commencement of the relevant provisions in the Migration Legislation Amendment Act (No. 1) 2008.

 

Clause 3          Schedule(s)

 

6.                   This clause provides that each Act specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to the Act has effect according to its terms.



Schedule 1—Migration Act 1958

 

Migration Act 1958

 

Item 1                         Section 379AA

 

7.                   This item makes a minor technical amendment consequential to the amendments in item 2 by inserting “(1)” before the word “If” in section 379AA of the Migration Act 1958 (“the Act”).

 

Item 2             At the end of section 379AA

 

8.                   This item adds new subsections 379AA(2), (3) and (4) in section 379AA of the Act.  Currently section 379AA provides that if a provision in the Act or the Migration Regulations 1994 (“the Regulations”) requires or permits the MRT to give a document to a person and it does not specify a method which the MRT can give the document, then the MRT may give the document to the person by a method that it considers appropriate.  Such a method may be one of the methods specified in section 379A or 379B or a method prescribed for the purposes of giving documents to a person in immigration detention. 

 

New subsection 379AA(2)

 

9.                   New subsection 379AA(2) will provide that where a person is a minor, the MRT may give a document to an individual who is at least 18 if a member, the Registrar, a Deputy Registrar or another officer of the MRT reasonably believes that the individual has the day-to-day care and responsibility for the minor.  Alternatively, the MRT may give a document to an individual who is at least 18 if a member, the Registrar, or a Deputy Registrar or another officer of the RRT reasonably believes that the individual works in or for an organisation that has day-to-day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.  In these cases, this person will be the person these likely to act on the notification in the interests of the minor.

 

10.               The amendments in this item are mirrored in item 12 (for the RRT) and 22 (for the Minister).  These amendments aim to deal with who may be notified in relation to clients who are minors where the minor does not have an authorised recipient or is not part of a combined application. 

 

11.               Further, this item and items 12 and 22 are not intended to be interpreted as excluding members of a same-sex relationship (past or current) from being considered as an individual that has day-to-day care and responsibility for the minor.



 

New subsection 379AA(3)

 

12.               This new subsection proposes to provide that where the MRT gives a document to an individual, as mentioned in new subsection 379AA(2), the MRT is taken to have given the document to the minor.  It also provides that doing so does not prevent the MRT giving the minor a copy of the document.

 

New subsection 379AA(4)

 

13.               This item also adds new subsection 379AA(4).  This new subsection will provide that the MRT is taken to have given a document to a person even if the document, the envelope containing the document or any accompanying material, contains an error or omission that is minor or insignificant, unless the person can show that such error or omission substantially prejudices him or her.  This new subsection will operate to prevent appeals which rely on legal notification technicalities, and minor or insignificant errors on the part of the Department in the notification document.  However, the new provision will contain a safeguard that will ensure that if the person can show that the error or omission substantially prejudices him or her, notification will not have been effected.

 

Item 3             After subsection 379AA(2)

 

14.               This item inserts new subsection 379AA(2A) in the Act to provide that new subsection 379AA(2) does not apply where section 379EA of the Act (which relates to giving documents in the case of combined applications) applies in relation to the minor. This reflects the hierarchy as to who must be notified in the case of minors as follows:

 

(a)                 if the minor has an authorised recipient — the authorised recipient;

(b)                if the minor does not have an authorised recipient but has made an application together with other persons — any other of those persons (or their authorised recipient);

(c)                 if neither (a) or (b) applies — the person referred to in subsection 379AA(2).

 

15.               For the commencement of this item, see table item 3 in the table in clause 2.

 

Item 4             After subsection 379A(1)

 

16.               This item inserts new subsection 379A(1A) into section 379A of the Act.

 

17.               Currently subsection 379A provides for the methods which the MRT can give documents to a person (other than the Secretary).  New subsection 379A(1A) proposes to specify the methods which the MRT may use to give a document to a person (other than the Secretary) who is a minor.

 

18.               New subsection 379A(1A) provides that where a person to whom the MRT gives a document is a minor, the MRT may use the methods mentioned in subsections 379A(4) and (5) to dispatch or transmit a document to an individual (a carer of the minor) who is at least 18 and who a member, the Registrar, a Deputy Registrar or another officer of the MRT reasonably believes has the day-to-day care and responsibility for the minor.  Alternatively, the MRT may dispatch or transmit the document to an individual (a carer of the minor) who is at least 18 and who a member, the Registrar, a Deputy Registrar or another officer of the MRT reasonably believes that the individual works in or for an organisation that has day-to-day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.

 

19.               This item also inserts a note to inform readers that where the MRT gives an individual a document by the method in subsection 379A(4) or (5), the individual is taken to have received the document at the time specified in section 379C in respect of that method.

 

Item 5             After subsection 379A(1A)

 

20.               This item inserts new subsection 379A(1B) to provide that new subsection 379A(1A) does not apply if section 379EA of the Act (which relates to giving documents in the case of combined applications) applies in relation to the minor.  This reflects the hierarchy as to who must be notified in the case of minors as follows:

 

(a)                 if the minor has an authorised recipient — the authorised recipient;

(b)                if the minor does not have an authorised recipient but has made an application together with other persons — any other of those persons (or their authorised recipient);

(c)                 if neither (a) or (b) applies — the person referred to in subsections 379AA(2) and 379A(1A).

 

21.               For the commencement of this item, see table item 5 in the table in clause 2.

 

Item 6             At the end of paragraph 379A(4)(c)

 

22.               This item adds a new subparagraph 379A(4)(c)(iii) in paragraph 379A(4)(c) of the Act.

 

23.               In general terms, subsection 379A(4) provides that the MRT can give a document to a recipient by way of dispatching it to the last address for service, or the last residential or business address, provided to the MRT by the recipient in connection with the review.

 

24.               New subparagraph 379A(4)(c)(iii) extends subsection 379A(4) to apply to circumstances where the intended recipient is a minor.  In effect, it provides that if the intended recipient is a minor, the MRT can dispatch the document to the last address for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer of the MRT.  Such a carer is an individual of a kind mentioned in new subsections 379AA(2) and 379A(1A).  In these cases, this person will be the person most likely to act on the notification in the interests of the minor.

 

Item 7             Subsection 379A(5)

 

25.               This item amends subsection 379A of the Act by replacing all the words after paragraph 379A(5)(c) with new paragraphs 379A(5)(d) and (e).

 

26.               New paragraph 379A(5)(d) contains the words that are removed by this item.  This new paragraph is a minor technical amendment consequential to the insertion of new paragraph 379A(5)(e).

 

27.               Currently subsection 379A(5) provides that the MRT can give a document to a recipient by way of transmitting it by fax, e-mail or other electronic means to the last contact details provided to the MRT by the recipient in connection with the review.  New paragraph 379A(5)(e) extends subsection 379A(5) to apply to circumstances where the intended recipient is a minor. 

 

28.               In effect, new paragraph 379A(5)(e) provides that if the intended recipient is a minor, the MRT can transmit the document by fax, e-mail or other electronic means to the last fax number, e-mail address or other electronic address, as the case may be, for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer of the MRT.  Such a carer is an individual of a kind mentioned in new subsections 379AA(2) and 379A(1A).  In these cases, this person will be the person most likely to act on the notification in the interests of the minor.

 

Item 8             At the end of section 379A

 

29.               This item adds new subsection 379A(6) in section 379A of the Act that currently provides for the methods which the MRT can give documents to a person (other than the Secretary). 

 

30.               This new subsection provides that where the MRT gives a document to a carer of a minor, the MRT is taken to have given the document to the minor.  It also provides that doing so does not prevent the MRT giving the minor a copy of the document.  The carer is an individual of a kind mentioned in new subsections 379AA(2) and 379A(1A).



 

Item 9             At the end of section 379C

 

31.               This item and items 10, 19, 20, 27 and 28 will, in general terms provide, that substantial compliance by the MRT, the RRT and the Minister in relation to the required contents of a notification document will be sufficient, and provide that the deemed time of notification provisions in the Act will apply where there has been actual notification, despite a defect in procedures for giving the person the notice, unless the person can show that the defect substantially prejudices him or her. 

 

32.               Item 9 adds new subsections 379C(7) and (8) in section 379C which currently provides for the times when a person (other than the Secretary) is taken to have received a document from the MRT where it gives the document to that person by one of the methods specified in 379A (including in a case covered by section 379AA).  Section 379A provides that the MRT can give a document to a recipient by handing it to the recipient or to another person apparently aged at least 16 and living or working at the last residential or business address provided by the recipient in connection with the review.  Alternatively the MRT can give the document to the recipient by prepaid post or other prepaid means, by fax, e-mail or other electronic means, to the last contact details provided to the MRT by the recipient in connection with the review.

 

New subsection 379C(7)

 

33.               Item 9 adds new subsection 379C(7) in section 379C of the Act.  New subsection 379C(7) relates to the deemed receipt of a document that contains a minor or insignificant error.  This new subsection will provide that a person is taken to have received a document at the times mentioned in section 379C even if the document, the envelope containing the document or any accompanying material, contains an error or omission that is minor or insignificant, unless the person can show that such error or omission substantially prejudices him or her. 

 

34.               The recent case of SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 (“the SZKGF case”) arose from the inclusion of an incorrect postcode on two letters sent to a visa applicant by the RRT which were received and acted on by him.  The court considered that there had been no practical injustice and the applicant had lost no opportunity to advance his case.  In any event there were cogent reasons for concluding that the postcode was not part of the address and therefore the use of the incorrect postcode did not result in non-compliance with the Act.

 

35.               The SZKGF case is a case where the court was satisfied that any breach could have had no effect upon the RRT’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 RRT’s decision and require reconsideration of the applicant’s claims would be to allow the triumph of mere technicality over substance.

 

36.               While this assists in determining that a minor error, such as an incorrect post code, may not constitute a legal error in the notification process, the amendment in this item and items 10, 12, 19, 20, 27 and 28 will put beyond doubt that substantial compliance with by the MRT, the RRT and the Minister in relation to the required contents of a notification document will be sufficient. 

 

New subsection 379C(8)

 

37.               Item 9 also adds a new subsection 379C(8) in section 379C of the Act.  This new subsection relates to the deemed receipt of a document when the giving of the document did not comply with the requirements in the Act.  It will provide that where the MRT purports to give a document to a person in accordance with a method specified in section 379A (including in a case covered by section 379AA, for example where the method in section 379A has been chosen as opposed to required by the Act or the Regulations) but makes an error in doing so, and the person nonetheless receives the document or a copy of it, then the person is taken to have received the document at the times mentioned in section 379C as if the MRT had given the document to the person without making an error in doing so, unless the person can show that he or she received the document at a later time, in which case, the person is taken to have received it at that time.  This new subsection will also protect the person from possible injustice by allowing the person to actually show that he or she received the document at a later time than provided by the deeming provisions.

 

38.               New subsection 379C(8) will address the type of situation in SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 (“the SZIZO case”).  In 2008 the Full Federal Court in the SZIZO case unanimously held that actual notification of a hearing invitation (evidenced in that case by the applicant’s attendance at the hearing) was not sufficient to override a failure to strictly comply with every part of the notification requirements in the Act.  In that case, all applicants appeared at the RRT hearing and a number of them had the chance to present their evidence, and so none of the applicants were prejudiced by the RRT’s failure to strictly comply with the relevant notification requirement in the Act. 

 

Item 10                       After subsection 379G(2)

 

39.               As noted in relation to item 9, the amendment in this item proposes to put beyond doubt that substantial compliance by the MRT in relation to the required contents of a notification document will be sufficient.

 

40.               This item inserts new subsection 379G(2A) in section 379G of the Act.

 

41.               Section 379G provides, amongst other things, that where an applicant seeking review of an MRT-reviewable decision has notified the MRT in writing of his or her authorised recipient, the MRT must give any documents to the authorised recipient instead of the applicant.  New subsection 379G(2A) will provide that the MRT is taken to have given a document to the applicant’s authorised recipient even if the document, the envelope containing the document or any accompanying material, contains an error or omission that is minor or insignificant, unless the applicant can show that the error or omission substantially prejudices him or her. 

 

Item 11           Section 441AA

 

42.               This item makes a minor technical amendment consequential to the amendments in item 12 by inserting “(1)” before the word “If” in section 441AA of the Act.

 

Item 12           At the end of section 441AA

 

43.               This item adds new subsections 441AA(2), (3) and (4) in section 441AA of the Act.  Currently section 441AA provides that if a provision in the Act or the Regulations requires or permits the RRT to give a document to a person and it does not specify a method which the RRT can give the document, then the RRT may give the document to the person by a method that it considers appropriate.  Such a method may be one of the methods specified in section 441A or 441B or a method prescribed for the purposes of giving documents to a person in immigration detention. 

 

New subsection 441AA(2)

 

44.               New subsection 441AA(2) provides that where a person is a minor, the RRT may give a document to an individual who is at least 18 if a member, the Registrar or an officer of the RRT reasonably believes that the individual has day-to-day care and responsibility for the minor.  Alternatively, the RRT may give a document to an individual who is at least 18 if a member, the Registrar or an officer of the RRT reasonably believes that the individual works in or for an organisation that has day-to-day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor. 

 

45.               This item is not intended to be interpreted as excluding members of a same-sex relationship (past or current) from being considered as an individual that has day-to-day care and responsibility for the minor.

 

New subsection 441AA(3)

 

46.               New subsection 441AA(3) proposes to provide that where the RRT gives a document to an individual, as mentioned in new subsection 441AA(2), the RRT is taken to have given the document to the minor.  It also provides that doing so does not prevent the RRT giving the minor a copy of the document.



 

New subsection 441AA(4)

 

47.               New subsection 441AA(4) provides that the RRT is taken to have given a document to a person under section 441AA even if the document, the envelope containing the document or any accompanying material, contains an error or omission that is minor or insignificant, unless the person can show that such error or omission substantially prejudices him or her.  This new subsection will operate to prevent appeals which rely on legal notification technicalities, and minor or insignificant errors on the part of the Department in the notification document.  However, the new provision will contain a safeguard that will ensure that if the person can show that the error or omission substantially prejudices him or her, then this new provision cannot be relied upon by the Department.  This amendment seeks to restore the integrity of the notification regime, while providing greater certainty and protection for the Department’s clients.

 

Item 13           After subsection 441AA(2)

 

48.               This item inserts new subsection 441AA(2A) in the Act to provide that new subsection 441AA(2) does not apply where section 441EA of the Act (which relates to giving documents in the case of combined applications) applies in relation to the minor. This reflects the hierarchy as to who must be notified in the case of minors as follows:

 

(a)                 if the minor has an authorised recipient — the authorised recipient;

(b)                if the minor does not have an authorised recipient but has made an application together with other persons — any other of those persons (or their authorised recipient);

(c)                 if neither (a) or (b) applies — the person referred to in subsections 441AA(2) and 441A(1A).

 

49.               For the commencement of this item, see item 7 in the table in clause 2.

 

Item 14           After subsection 441A(1)

 

50.               This item inserts new subsection 441A(1A) into section 441A of the Act.

 

51.               Currently subsection 441A provides for the methods which the RRT can give documents to a person (other than the Secretary).  New subsection 441A(1A) proposes to specify the methods which the RRT may use to give a document to a person (other than the Secretary) who is a minor. 

 

52.               New subsection 441A(1A) provides that where a person to whom the RRT gives a document is a minor, the RRT may use the methods mentioned in subsections 379A(4) and (5) to dispatch or transmit a document to an individual (a carer of the minor) who is at least 18 and who a member, the Registrar or an officer of the RRT reasonably believes has day-to-day care and responsibility for the minor.  Alternatively, the RRT may dispatch or transmit the document to an individual (a carer of the minor) who is at least 18 and who a member, the Registrar or an officer of the RRT reasonably believes that the individual works in or for an organisation that has day-to-day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.

 

53.               This item also inserts a note to inform readers that where the RRT gives an individual a document by the method in subsection 441A(4) or (5), the individual is taken to have received the document at the time specified in section 441C in respect of that method.

 

Item 15           After subsection 441A(1A)

 

54.               This item inserts new subsection 441A(1B) to provide that new subsection 441A(1A) does not apply if section 441EA of the Act (which relates to giving documents in the case of combined applications) applies in relation to the minor. This reflects the hierarchy as to who must be notified in the case of minors as follows:

 

(d)                if the minor has an authorised recipient — the authorised recipient;

(e)                 if the minor does not have an authorised recipient but has made an application together with other persons — any other of those persons (or their authorised recipient);

(f)                 if neither (a) or (b) applies — the person referred to in subsections 441AA(2) and 441A(1A).

 

55.               For the commencement of this item, see table item 9 in the table in clause 2.

 

Item 16           At the end of paragraph 441A(4)(c)

 

56.               This item adds a new subparagraph 441A(4)(c)(iii) in paragraph 441A(4)(c) of the Act. 

 

57.               In general terms, subsection 441A(4) provides that the RRT can give a document to a recipient by way of dispatching it to the last address for service, or the last residential or business address, provided to the RRT by the recipient in connection with the review.

 

58.               New subparagraph 441A(4)(c)(iii) extends subsection 441A(4) to apply to circumstances where the intended recipient is a minor.  In effect, it provides that if the intended recipient is a minor, the RRT can dispatch the document to the last address for a carer of the minor that is known by the member, Registrar or other officer of the RRT.  Such a carer is an individual of a kind mentioned in new subsections 441AA(2) and 441A(1A).  In these cases, this person will be the person most likely to act on the notification in the interests of the minor.

 

Item 17           Subsection 441A(5)

 

59.               This item amends subsection 441A of the Act by replacing all the words after paragraph 441A(5)(c) with new paragraphs 441A(5)(d) and (e).

 

60.               New paragraph 441A(5)(d) contains the words that are removed by this item.  This new paragraph is a minor technical amendment consequential to the insertion of new paragraph 441A(5)(e).

 

61.               Currently subsection 441A(5) provides that the RRT can give a document to a recipient by way of transmitting it by fax, e-mail or other electronic means to the last contact details provided to the RRT by the recipient in connection with the review.  New paragraph 441A(5)(e) extends subsection 441A(5) to apply to circumstances where the intended recipient is a minor. 

 

62.               In effect, new paragraph 441A(5)(e) provides that if the intended recipient is a minor, the RRT can transmit the document by fax, e-mail or other electronic means to the last fax number, e-mail address or other electronic address, as the case may be, for a carer of the minor that is known by the member, Registrar or other officer of the RRT.  Such a carer is an individual of a kind mentioned in new subsections 441AA(2) and 441A(1A).  In these cases, this person will be the person most likely to act on the notification in the interests of the minor.

 

Item 18           At the end of section 441A

 

63.               This item adds new subsection 441A(6) in section 441A of the Act that currently provides for the methods which the RRT can give documents to a person. 

 

64.               This new subsection provides that where the RRT gives a document to a carer of a minor, the RRT is taken to have given the document to the minor.  It also provides that doing so does not prevent the RRT giving the minor a copy of the document.  The carer is an individual of a kind mentioned in new subsections 441AA(2) and 441A(1A).

 

Item 19           At the end of section 441C

 

65.               This item adds two new subsections 441C(7) and 441C(8) at the end of section 441C of the Act which generally provide that substantial compliance by the RRT in relation to the required contents of a notification document is sufficient, and provide that the deemed time of notification provisions in the Act will apply where there has been actual notification, despite a defect in procedures for giving the person the notice, unless the person can show that the defect substantially prejudices him or her.

 

66.               Section 441C currently provides for when a person (other than the Secretary) is taken to have received a document from the RRT where it gives the document to that person by one of the methods specified in 441A (including in a case covered by section 441AA, for example where the method in section 441A has been chosen as opposed to required under the Act or Regulations).  Section 441A provides that the RRT can give a document to a recipient by handing it to the recipient or to another person apparently at least 16 and living or working at the last residential or business address provided by the recipient in connection with the review.  Alternatively the RRT can give the document to the recipient by prepaid post or other prepaid means, by fax, e-mail or other electronic means, to the last contact details provided to the RRT by the recipient in connection with the review.

 

New subsection 441C(7)

 

67.               New subsection 441C(7) relates to the deemed receipt of a document that contains a minor or insignificant error.  It will provide that a person is taken to have received a document at the times mentioned in section 441C even if the document, the envelope containing the document or any accompanying material, contains an error or omission that is minor or insignificant, unless the person can show that the error or omission substantially prejudices him or her. 

 

New subsection 441C(8)

 

68.               Item 19 also adds new subsection 441C(8) in section 441C of the Act.  The purpose of this subsection is to provide that evidence of “actual” notification will enliven the deemed time of notification provisions in the Act.  This new subsection provides that if the RRT purports to give a document to a person in accordance with a method specified in section 441A (including in a case covered by section 441AA, for example where the method in section 441A has been chosen as opposed to required under the Act or the Regulations) but makes an error in doing so, and the person nonetheless receives the document or a copy of it, then the person is taken to have received the document at the times mentioned in  section 441C as if the RRT had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.  This new subsection will also protect the person from possible injustice by allowing the person to actually show that he or she received the document at a later time than provided by the deeming provisions.



 

Item 20           After subsection 441G(2)

 

69.               The amendment in this item proposes to put beyond doubt that substantial compliance by the RRT in relation to the required contents of a notification document will be sufficient.

 

70.               This item inserts new subsection 441G(2A) in section 441G of the Act.

 

71.               Section 441G provides, amongst other things, that where an applicant seeking review of an RRT-reviewable decision has notified the RRT in writing of his or her authorised recipient, the RRT must give any documents to the authorised recipient instead of the applicant.  New subsection 441G(2A) will provide that the RRT is taken to have given a document to the applicant’s authorised recipient even if the document, the envelope containing the document or any accompanying material, contains an error or omission that is minor or insignificant, unless the applicant can show that the error or omission substantially prejudices him or her.

 

Item 21           Section 494A

 

72.               This item makes a minor technical amendment consequential to the amendments in item 22 by inserting “(1)” before the word “If” in section 494A of the Act.

 

Item 22           At the end of section 494A

 

73.               This item adds new subsections 494A(2), (3), (4) and (5) in section 494A of the Act.  Currently section 494A provides that if a provision in the Act or the Regulations requires or permits the Minister to give a document to a person and it does not specify a method which the Minister can give the document, then the Minister may give the document to the person by a method that he or she considers appropriate.  Such a method may be one of the methods specified in section 494B or a method prescribed for the purposes of giving documents to a person in immigration detention. 

 

New subsection 494A(2)

 

74.               To clarify and put beyond doubt the requirements regarding communication with minors, item 22 adds new subsection 494A(2) in the Act.  This new subsection provides that where a person to whom the Minister gives a document is a minor, the Minister may give the document to an individual who is at least 18 if the Minister reasonably believes that the individual has day-to-day care and responsibility for the minor.  Alternatively, the Minister may give a document to an individual who is at least 18 if the Minister reasonably believes that the individual works in or for an organisation that has day-to-day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.

 

75.               Further, this item is not intended to be interpreted as excluding members of a same-sex relationship (past or current) from being considered as an individual that has day-to-day care and responsibility for the minor.

 

New subsection 494A(3)

 

76.               New subsection 494A(3) provides that, new subsection (2) does not apply if subsection 52(3C) of the Act (which relates to giving notifications in the case of combined applications) applies in relation to the minor.  This reflects the hierarchy as to who must be notified in the case of minors as follows:

 

(a)                 if the minor has an authorised recipient — the authorised recipient;

(b)                if the minor does not have an authorised recipient but has made an application together with other persons — any other of those persons (or their authorised recipient);

(c)                 if neither (a) or (b) applies — the person referred to in subsections 494A(2) and 494B(1A).

 

77.               New subsection 494A(4) provides that if the Minister gives a document to an individual, as mentioned in new subsection 494A(2), then the Minister is taken to have given the document to the minor.  It also provides that doing so does not prevent the Minister giving the minor a copy of the document.

 

78.               New subsection 494A(5) provides that the Minister is taken to have given a document to a person under section 494A even if the document, the envelope containing the document or any accompanying material, contains an error or omission that is minor or insignificant, unless the person can show that the error or omission substantially prejudices him or her.  This new subsection will operate to prevent appeals which rely on legal notification technicalities, provided that the non-citizen has not been substantially prejudiced.

 

Item 23           After subsection 494B(1)

 

79.               This item inserts new subsection 494B(1A) and (1B) into section 494B of the Act. 

 

80.               Currently subsection 494B provides for the methods which the Minister can give documents to a person.  New subsection 494B(1A) proposes to specify the methods which the Minister may use to give a document to a person who is a minor.

 

81.               New subsection 494B(1A) provides that where a person to whom the Minister gives a document is a minor, the Minister may use the methods mentioned in subsections 494B(4) and (5) to dispatch or transmit a document to an individual (a carer of the minor) who is at least 18 and who the Minister reasonably believes has day-to-day care and responsibility for the minor.  Alternatively, the Minister can dispatch or transmit the document to an individual (a carer of the minor) who is at least 18 and who the Minister reasonably believes that the individual works in or for an organisation that has day-to-day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.  In these cases, this person will be the person most likely to act on the notification in the interests of the minor.

 

82.               This item also inserts a note to inform the readers that where the Minister gives an individual a document by the method mentioned in subsection 494B(4) or (5), the individual is taken to have received the document at the time specified in section 494C in respect of that method.

 

83.               New subsection 494B(1B) provides that subsection 494B(1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.  This reflects the hierarchy as to who must be notified in the case of minors as follows:

 

(a)                 if the minor has an authorised recipient — the authorised recipient;

(b)                if the minor does not have an authorised recipient but has made an application together with other persons — any other of those persons (or their authorised recipient);

(c)                 if neither (a) or (b) applies — the person referred to in subsections 494A(2) and 494B(1A).

 

Item 24           At the end of paragraph 494B(4)(c)

 

84.               This item adds a new subparagraph 494B(4)(c)(iii) in paragraph 494B(4)(c) of the Act. 

 

85.               In general terms, subsection 494B(4) provides that the Minister can give a document to a recipient by way of dispatching it to the last address for service, or the last residential or business address, provided to the Minister by the recipient for the purposes of receiving documents.

 

86.               New subparagraph 494B(4)(c)(iii) extends subsection 494B(4) to apply to circumstances where the intended recipient is a minor.  In effect, it provides that if the intended recipient is a minor, the Minister can dispatch the document to the last address for a carer of the minor that is known by the Minister.  Such a carer is an individual of a kind mentioned in new subsections 494A(2) and 494B(1A).  In these cases, this person will be the person most likely to act on the notification in the interests of the minor:



 

Item 25           Subsection 494B(5)

 

87.               This item amends subsection 494B(5) of the Act by replacing all the words after paragraph 494B(5)(c) with new paragraphs 494B(5)(d) and (e).  These amendments are consequential to the amendments in item 22.

 

88.               New paragraph 494B(5)(d) contains the words that are removed by this item.  This new paragraph is a minor technical amendment consequential to the insertion of new paragraph 494B(5)(e).

 

89.               Currently subsection 494B(5) provides that the Minister can give a document to a recipient by way of transmitting it by fax, e-mail or other electronic means to the last contact details provided to the Minister by the recipient for the purposes of receiving documents.  New paragraph 494B(5)(e) extends subsection 494B(5) to apply to circumstances where the intended recipient is a minor. 

 

90.               In effect, new paragraph 494B(5)(e) provides that if the intended recipient is a minor, the Minister can transmit the document by fax, e-mail or other electronic means to the last fax number, e-mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.  Such a carer is an individual of a kind mentioned in subsections 494A(2) and 494B(1A).  In these cases, this person will be the person most likely to act on the notification in the interests of the minor.

 

Item 26           At the end of section 494B

 

91.               This item adds new subsection 494B(7) in section 494B of the Act that currently provides for the methods which the Minister can give documents to a person. 

 

92.               This new subsection provides that where the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor.  It also provides that doing so does not prevent the Minister giving the minor a copy of the document.  The carer is an individual of a kind mentioned in new subsections 494A(2) and 494B(1A).

 

Item 27           At the end of section 494C

 

93.               This item adds two new subsections 494C(7) and 494C(8) at the end of section 494C of the Act to provide that substantial compliance by the Minister in relation to the required contents of a notification document is sufficient, and to provide that evidence of actual notification may cure any defect in procedures required to be followed for the deemed time of notification provisions to apply.

 

94.               Section 494C currently provides for when a person is taken to have received a document from the Minister where he or she gives the document to that person by one of the methods specified in section 494B (including in a case covered by section 494A, for example where the method in section 441B has been chosen as opposed to required by the Act or the Regulations).  Section 494B provides that the Minister can give a document to a recipient by handing it to the recipient or to another person apparently at least 16 and living or working at the last residential or business address provided by the recipient for the purpose of receiving documents.  Alternatively the Minister can give the document to the recipient by prepaid post or other prepaid means, by fax, e-mail or other electronic means, to the last contact details provided to the Minister by the recipient for the purposes of receiving documents.

 

New subsection 494C(7)

 

95.               New subsection 494C(7) relates to the deemed receipt of a document that contains a minor or insignificant error.  It provides that a person is taken to have received a document at the times mentioned in section 494C even if the document, the envelope containing the document or any accompanying material, contains an error or omission that is minor or insignificant, unless the person can show that the error or omission substantially prejudices him or her. 

 

New subsection 494C(8)

 

96.               Item 27 also adds new subsection 494C(8) in section 494C of the Act.  The purpose of this subsection is to provide that evidence of “actual” notification will enliven the deemed time of notification provisions in the Act.  This new subsection provides that if the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A, for example where the method in section 494B has been chosen as opposed to required by the Act or the Regulations) but makes an error in doing so, and the person nonetheless receives the document or a copy of it, then the person is taken to have received the document at the times mentioned in section 494C as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.  This new subsection will also protect the person from possible injustice by allowing the person to actually show that he or she received the document at a later time than provided by the deeming provisions.



 

Item 28           After subsection 494D(2)

 

97.               The amendment in this item proposes to put beyond doubt that substantial compliance by the Minister in relation to the required contents of a notification document will be sufficient.

 

98.               This item inserts new subsection 494D(2A) in section 494D of the Act.

 

99.               Section 494D provides, amongst other things, that where a person (“the first person”) has notified the Minister in writing of his or her authorised recipient, the Minister must give any documents to the authorised recipient instead of the first person.  New subsection 494D(2A) will provide that the Minister is taken to have given a document to the authorised recipient even if the document, the envelope containing the document or any accompanying material, contains an error or omission that is minor or insignificant, unless the first person can show that the error or omission substantially prejudices him or her. 

 

Item 29           Application

 

100.           This item provides that the amendments contained in this Schedule apply to a document given, dispatched, or transmitted on or after the day that this Schedule commences.