EUW17 v Minister for Home Affairs - [2019] FCCA 111

FEDERAL CIRCUIT COURT OF AUSTRALIA

EUW17 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 111

Catchwords:
MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – practice direction sent to incorrect address – failure to comply with s.473DC – whether jurisdictional error – none shown – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 473CA, 473CB(1), 473DA(1), 473DC(1), 473GA, 473GB, 473HB, 476(1), Pt.7AA

Cases cited:

BJH17 v Minister for Immigration and Border Protection [2018] FCA 891

COA16 v Minister for Immigration and Border Protection [2018] FCA 475

CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404

DBE16 v Minister for Immigration and Border Protection [2017] FCA 942

Applicant:

EUW17

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 580 of 2017

Judgment of:

Judge Kendall

Hearing date:

24 October 2018

Date of Last Submission:

24 October 2018

Delivered at:

Perth

Delivered on:

21 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr F. Robertson

Solicitors for the Applicant:

AUM Legal

Counsel for the First Respondent:

Mr P. Hannan

Solicitors for the Respondents

Australian Government Solicitor

The Second Respondent:

Submitting an appearance, save as to costs

ORDERS

The applicant’s originating application filed on 31 October 2017 and amended on 23 February 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 580 of 2017

EUW17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

The applicant in these proceedings is a Sri Lankan Tamil. On 3 November 2012, he arrived in Australia via Cocos (Keeling) Islands as an unauthorised maritime arrival.
On 10 December 2015, the Minister for Immigration and Border Protection lifted the bar pursuant to s.46A of the Migration Act 1958 (Cth) (the “Migration Act”).
On 22 April 2016, the applicant lodged an application for a Safe Haven Enterprise Visa (“SHEV”). Relevantly (for reasons that will be discussed below), the address provided on the applicant’s SHEV application was “37 Jaeger Square, Ballajura” in Western Australia.
On 3 June 2016, the SHEV application was acknowledged as being valid. This correspondence was sent to 37 Jaeger Square, Ballajura.
On 30 August 2016, the applicant was invited to attend an interview with an officer of the Department of Immigration and Border Protection (the “Department”). This correspondence was also sent to 37 Jaeger Square, Ballajura.
On 22 September 2016, the applicant attended an interview with an officer of the Department to discuss his protection claims.
On 10 October 2016, the applicant notified the Department that he had changed his address to “19 Pimelia Grove, Thornlie” in Western Australia.
On 11 December 2016, the applicant's application for a SHEV was refused by a Ministerial delegate.
On 12 December 2016, the Department notified the applicant of the refusal. That correspondence was sent to the applicant at 19 Pimelia Grove, Thornlie (the “Refusal Notification”).
The Refusal Notification advised the applicant that the decision to refuse his SHEV had been referred to the Immigration Assessment Authority (the “Authority”) in accordance with s.473CA of the Migration Act.
It is not disputed that the applicant received this correspondence.
The Refusal Notification sent to the applicant advised him that that the Department had provided the following information to the Authority:
a)the decision record;
b)any material he gave to the department before the Refusal Decision was made;
c)any other material the Department considered relevant to the review; and
d)the applicant’s contact details, noted as follows: 19 Pimelia Grove Thornlie WA 6108.
On 19 December 2016, the Authority wrote to the applicant at “37 Jaeger Square, Ballajura” acknowledging the delegate's referral to the Authority. That letter enclosed a copy of the Authority's “Practice Direction for Applicants, Representatives and Authorised Recipients” (the “Practice Direction”).
As noted above, this material was sent to the applicant at 37 Jaeger Square, Ballajura WA 6066. This was the address provided on the applicant's visa application. It was not the address provided in the review materials sent to the Authority by the delegate (which was, as noted above at [7] and [9], 19 Pimelia Grove, Thornlie 6108). The evidence shows that the applicant was no longer living at that address.
On 10 May 2017, the applicant ceased living at 19 Pimelia Grove, Thornlie. He moved (back, it appears) to 37 Jaeger Square, Ballajura. He notified the Department of this move.
On 22 August 2017, the Authority wrote to the applicant at 19 Pimelia Grove, Thornlie advising him that the Authority had affirmed the delegate’s decision to his SHEV application. In this regard, it is noted that there is a “Case File Note” dated 23 August 2017 which records "postal address updated in accordance with IAA disclosure checklist prior to correspondence being sent" and records the address being updated from 37 Jaeger Square, Ballajura to 19 Pimelia Grove, Thornlie.

Proceedings in this Court

This proceeding is brought pursuant to s.476(1) of the Migration Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Authority.
On 31 October 2017, the applicant filed an application for an extension of time to review the Authority's decision in the Federal Circuit Court.
On 23 February 2018, the applicant filed an amended application.
On 7 June 2018, the Court granted the applicant an extension of time by consent.
By his amended application, the applicant alleges jurisdictional error on the part of the Authority, particularised as follows:
Amended Grounds of application
Ground 1 - Failure to deliver to correct address
1.The applicant was denied procedural fairness by being deprived of the opportunity to make submissions to the IAA on the review as invited by the IAA's Practice Direction.
Particulars
A.The application for a safe haven enterprise visa stated that the applicants residential and postal address was 37 Jaeger Square, Ballajura (CB 54)
B.On 10 October 2016, the applicant gave notice of a change of address by email to "[email protected]" to 19 Pimelia Grove, Thornlie, WA 6108 (see affidavit of the applicant, pg 31)
C.On 12 December 2016, the Department of Immigration and Border Protection sent the notification of refusal of application for a Safe Haven Enterprise (subclass 790) visa to 19 Pimelia Grove, Thornlie, WA 6108 (CB 143), which correspondence noted, inter alia, that the Department had provided certain information to the IAA, including the applicant's address as "19 PIMELIA GROVE THORNLIE WA 6108"
D.The address of 19 Pimelia Grove, Thornlie, WA 6108 was actually provided to the IAA (CB 161) in accordance with the obligation contained in section 473CB(1)(d).
E.Notwithstanding the notifications by the Department, the IAA sent the "Acknowledgement of Referral" (CB 167) and "Practice Direction for Applicants, Representatives and Authorised Recipients" (CB 176) to the incorrect address of 37 Jaeger Square, Ballajura WA 6066.
F.By sending those documents to the incorrect address of 37 Jaeger Square, Ballajura, WA 6066, which was not the address provided to the IAA by the Department pursuant to section 473CB(1)(d), the IAA derived the applicant of an opportunity to comply with the Practice Direction and provide a submission to the IAA when conducting the review.
G.It was not until 10 May 2017, that the applicant sought to update his address back to 37 Jaeger Square, Ballajura, WA 6066 once again.
H.On 22 August 2017, the decision of the IAA to affirm the decision on review was sent to 19 Pimelia Grove, Thornlie, WA 6108 and notwithstanding the earlier notification.
Ground 2 - Failure to Follow Part 7AA
1.The IAA fell into jurisdictional error by failing to conduct the review in accordance with the procedure on review established pursuant to Part 7AA of the Migration Act 1958 (Cth) by reason of the failure of the IAA to send the "acknowledgement of referral" together with the "Practice Direction for Applicants, Representatives and Authorised Recipients" to the applicants correct address.
Particulars
The applicant repeats the particulars to Ground 1.
The main arguments advanced by the applicant were summarised by counsel for the applicant in written submissions as follows:
2.The Department of Immigration and Border Protection (‘Department’) was obliged, pursuant to section 473CB(1)(d) of the Act to provide to the IAA, among other things, the address nominated by the applicant to receive correspondence in relation to his visa application.
3.The Department did so and provided the address of “19 Pimelia Grove, Thornlie” to the IAA.
4.However, the IAA sent the acknowledgement of the referral and it’s Practice Direction (which invited the applicant to make a submission in relation to the review) to an address not provided pursuant to section 473CB(1)(d), namely 37 Jaeger Square, Ballajura.
5.The question which arises is whether, by reason of the IAA corresponding to the wrong address, the applicant was deprived of an opportunity to make submissions and for that reason the applicant was either denied procedural fairness and/or the IAA failed to conduct the review in accordance with Part 7AA, and in particular failed to comply with section 473HB(5).
In oral submissions, counsel for the applicant further explained:
MR ROBERTSON: …But, I suppose, the point that I am making is, having made the decision in conducting the review to send correspondence to the applicant, which correspondence included a practice direction advising the applicant of this option – having made that decision when conducting its review process -- it was incumbent upon the Authority in sending that to send it to the address nominated as part of the review material….;
and further:
MR ROBERTSON:…the fact that the address is incorrect means that, on our case, that the Authority has reviewed the decision by considering something other than the review material, as that phrase is defined.
These submissions are analysed in more detail below.
The Court had before it an extensive Court Book (“CB”) and an affidavit from the applicant dated 1 November 2017.
Written submissions were received from the Minister dated 3 October 2018. Extensive written submissions were also received from the applicant.

Fast Track Applications

It is not disputed that the applicant satisfies the criteria in s.5(1) of the Migration Act for a “fast track applicant”. Further, he is not an “excluded fast track review applicant” as that term is defined in the Migration Act. This is important in relation to allegations of jurisdictional error as the Migration Act limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the Authority.
The statutory regime for fast track applicants is extraordinarily restrictive in terms of what the Authority can (and must) do in relation to the evidence before it and the procedures it uses. Of note, Division 3 of Part 7AA of the Migration Act deals with the conduct of reviews by the Authority. Section 473DA(1) of the Migration Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473CB(1) of the Migration Act requires the Secretary of the Minister’s Department to give to the Authority certain material, known as the “review material”, in respect of each fast track reviewable decision referred to the Authority under s.473CA. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”; and
d)the referred applicant’s contact details (including his mailing address).
The Authority is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time his or her decision was made. The Authority can, however, obtain “new information” – defined as information that was not before the delegate and that the Authority considers “may be relevant”: s.473DC(1) of the Migration Act.
An applicant may also provide “new information” to the Authority and ask that it take that information into account.
Here, the applicant has also stressed the importance of Division 7, section 473HB(5) of the Migration Act. That section provides:
Methods by which Immigration Assessment Authority gives documents to a person other than the Secretary
Coverage of section
(1)For the purposes of provisions of this Part or the regulations that:
(a)require or permit the Immigration Assessment Authority to give a document to a person (the recipient ); and
(b)state that the Authority must do so by one of the methods specified in this section;
the methods are as follows.
…
(5)Another method consists of a Reviewer or a person mentioned in subsection 473JE(2) dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c)to:
(i) the last address for service of the recipient provided to the Immigration Assessment Authority in connection with the review; or
(ii) the last residential or business address of the recipient provided to the Authority in connection with the review…
It is not disputed that the Authority is guided by the Practice Direction and that any failure to comply with the Practice Direction will be scrutinised and frowned upon. This is as it should be given the few opportunities applicants have to present evidence to the Authority under what is an incredibly restrictive legal regime.
Relevantly in that regard, s.473DA(1) of the Migration Act provides that Division 3 of Part 7AA, together with ss.473GA and 473GB, is taken to be “an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority”. This provision operates to exclude the common law natural justice hearing rule in relation to reviews conducted by the Authority: DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [62].

Consideration

Ground 1

“The applicant was denied procedural fairness by being deprived of the opportunity to make submissions to the IAA on the review as invited by the IAA's Practice Direction”

It is not disputed that the Authority sent the Practice Direction to the wrong address. Nor is it disputed that the Authority did not comply with the requirements of s.473HB of the Migration Act. The question here is whether it was required to and, more importantly, whether the failure to do so constitutes jurisdictional error.
The applicant’s argument is essentially two-fold:
a)First, the fact that the Authority sent the acknowledgment of referral containing the Practice Direction to the wrong address means that that the Authority failed to adhere to the requirements of s.473CB of the Migration Act;
b)Second, having decided to send the Practice Direction to the applicant, it was required to send it to him at the right address and, in failing to do so, it denied the applicant an opportunity to make submissions. This, it is contended, denied the applicant procedural fairness.
Relevantly, the applicant contended as follows in written submissions:
22.Section 473CB imposes a duty on the Secretary to the Department administered by the Minister to give to the Authority specified “review material” in respect of each fast track reviewable decision referred by the Minister.
…
27.Section 473DB sets out a primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to in by considering the “review material”.
…
33.The legislation makes clear that the ‘review material’ includes the applicant’s address as notified by the Department. The IAA has a duty to conduct the review by reference to the ‘review material’.
34.The review material included the address of 19 Pimelia Grove, Thornlie. By sending the Practice Direction which invited a submission to 37 Jaeger Square, Ballajura the IAA proceeded on the review by reference to an old postal address which was not properly part of the ‘review material’ as provided for by section 473CB(1)(d)(i) and (ii). In doing so, the IAA departed from the strict legislative pathway which it was bound to follow.
(citations removed)
The Minister, in turn, contended as follows in written submissions:
30.The only provision in Division 3 of Part 7AA that the applicant has relied on in his submissions is 473DB. This section provides:
473DB Immigration Assessment Authority to review decisions on the papers
(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under s 473CB:
(a)without accepting or requesting new information; and
(b)without interviewing the referred applicant.
(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
31.The applicant's argument appears to be that because s 473DB(1) requires the Authority to consider the review material provided by the Secretary under s 473CB, and this review material includes 'the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents', the Authority has failed to comply with its procedural fairness obligations in Part 7AA of the Migration Act.
32.The applicant's argument must fail.
33.First, to the extent that the Authority was required by s 473DB to consider the address provided by the Secretary under s 473CB, it is clear that at the time of the decision, the Authority did in fact consider that address, because that is the address to which the Authority sent its decision.
34.Second, although s 473DB(1) requires the Authority to consider the review material provided by the Secretary, it does not follow that a failure by the Authority to refer to every piece of material will amount to a jurisdictional error. As the Full Court said in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.
35.In the present case, the applicant's address could not have any impact on his claims for protection. It therefore would not amount to jurisdictional error if the Authority did not consider and refer to it in reviewing the delegate's decision.
(citations removed)

The Court agrees with the Minister in this regard. To begin with, it is not clear that the Authority did not “consider” the address provided to it by the Department. On the evidence, the Authority certainly did send its final decision to the applicant at the correct address. This arguably required some sort of “consideration”.
Further, and perhaps more importantly, even if the correct address was not “considered” or “referred to” as part of the review process or in the decision, the applicant's address could not have had any impact on his claims for protection. In the circumstances of this case, it cannot amount to jurisdictional error if the Authority did not consider and refer to the correct address in reviewing the delegate's decision as any consideration or reference to the address is neither here nor there. Any “omission” has no impact on the Authority’s assessment of the applicant’s protection claims.
In relation to the second limb of ground one, the applicant contended as follows:
30.Given the consequences of a failure to comply with the Practice Direction, there must be an obligation on the IAA to provide the Practice Direction to review applicants. Such a conclusion is also supported by the fact that by the express terms of section 473FB obliging the IAA’s compliance with any Practice Direction, so far as is reasonably practicable.
…
36.…the failure of the IAA to send the acknowledgment and Practice Direction to the applicant at the address that:
(a)he was presently living at; and
(b)had been notified to it by the Department as part of the review material in accordance with section 473CB(1)(d)(i) and/or (ii)
had the actual effect of denying the applicant the opportunity to provide submissions (and indeed seek that the IAA have regard to new information, if he elected to so seek, pursuant to the provisions of section 473DD)…
37.The applicant was denied the opportunity to put a submission to the IAA and/or seek the favourable exercise of power pursuant to section 473DD through no fault of his own. The fault entirely lies with the IAA.
(citations removed)
The Minister, in turn, contended, in effect, that no jurisdictional error arises here because there is no legislative obligation on the part of the Authority to provide a copy of the Practice Direction to an applicant, there is no requirement that an applicant be invited to make a submission to the Authority and, in any event, the applicant was well aware or should have been aware long before the Authority handed down its decision that his matter had been referred to the Authority, that a decision was going to be made and that a Practice Direction existed.
The Court is sympathetic to the frustrations this particular applicant undoubtedly feels in relation to what has occurred here. It cannot be disputed that the Practice Direction relevant to the proceedings before the Authority is important. Significantly, the document advises applicants that they can submit written submission in a legal environment where there is no guaranteed right to appear and present oral submissions. It is also, in this context, one of the few sources of information made available to an unrepresented refugee applicant. Frankly, given the significance of the document to applicants and the limited aid available to them in this particular legal setting, the applicant had every right to expect better from the Authority and those who control its administrative processes.
Having said that, the question to be addressed is not whether the applicant has every right to feel aggrieved but whether the Authority’s conduct amounts to jurisdictional error.
Having reviewed the relevant provisions of the Migration Act in detail, the Court agrees that there is nothing, anywhere, in the Migration Act, that requires the Authority to send a copy of the Practice Direction to applicants.
As correctly argued by the Minister in written submissions, the Federal Court has consistently held that there is nothing in Division 3 of Part 7AA or ss.473GA or 473GB of the Migration Act which requires the Authority to provide to an applicant an opportunity to make submissions or provide new information.
In this regard, it is noted that in COA16 v Minister for Immigration and Border Protection [2018] FCA 475; BJH17 v Minister for Immigration and Border Protection [2018] FCA 891 and CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404 (“CRJ17”), the Federal Court considered notices of contention filed by the Minister, in each case contending that the Court below erred by suggesting that the Authority had complied with the requirements of procedural fairness in the conduct of the review by sending a letter to the applicant providing the applicant with an opportunity to provide submissions and new information.
Relevant to these proceedings, in CRJ17 Banks-Smith J expanded on this principle at [50] and [51] as follows:
50.In this case, the appellant made no assertion before the primary judge of a breach of procedural fairness and identified no obligation in Division 3 of Pt 7AA of the Act that the Authority had breached. Regardless, the Authority was not required to afford the appellant an opportunity to provide new information or put submissions to it or to otherwise send a letter inviting the appellant to do so: COA16 v Minister for Immigration and Border Protection [2018] FCA 475 at [37]-[38] (Rares J).
51.The Authority did in fact write to the appellant and informed him of the statutory provisions as to the receipt of new information. The Minister's point is that the primary judge's statement in his reasons should not be taken as any authority that the Authority was obliged to do so and that a failure to do so would have denied the appellant procedural fairness. I accept the Minister's submission. Having addressed the issue of procedural fairness, the primary judge ought to have found that s 473DA addresses the natural justice rule in the context of reviews by the Authority and that the Authority in this case was obliged only to comply with and did comply with the requirements of Division 3 of Pt 7AA with respect to its treatment of purported additional information.
The Court finds that, applying CRJ17, sending out a Practice Direction is akin to inviting someone to attend and provide submissions. As in CRJ17, there is no authority to support the argument that the Authority is required to provide the applicant with a copy of the Practice Direction which sets out general time frames and page limits for the provision of submissions. As correctly outlined by the Minister, although the Authority usually does provide a copy of the Practice Direction to applicants, this is done as a matter of good administration. It may choose to do so and it may be allowed to do so but it is not bound by the statute to do so.
But that is not really the central issue here. Here, the Court must ask whether:
a)having decided to send out the Practice Direction in circumstances where this is the normal administrative approach, is the Authority required to ensure that it send to the correct address; and
b)if it is required to do so and does not do so, does this amount to jurisdictional error?
It cannot be said that the Authority is not bound by requirements of s.473HB of the Migration Act simply because the Authority is not required to mail out a particular document. Section 473HB uses the words “require” or “permit”. Here, the Authority is permitted to provide a copy of the Practice Direction and, on the Minister’s own evidence, it normally does so.
Here, the Authority did what it normally does. It mailed out the Practice Direction to an applicant. However, here it sent it to the wrong address and thus failed to comply with the requirements of s.473HB of the Migration Act. It thus “erred”. But does that error amount to jurisdictional error in the form of procedural unfairness?
In relation to this issue, the Minister contended that the applicant has not established that he was in fact deprived of an opportunity to provide a submission to the Authority:
38.As Rares J found in COA16 at [37] (cited above), there is nothing in Part 7AA that prevents an applicant putting a submission to the Authority. This is the case irrespective of whether the Practice Direction is provided to an applicant. Further, the Practice Direction existed and operated whether or not it was provided to the applicant. It is a publicly available document, available on the Authority's website.
39.The letter sent to the applicant by the Department enclosing the delegate's decision contained basic information about the referral to the Authority and provided a website address for the Authority where the applicant could obtain further information. It would have been open to the applicant to visit the Authority's website in the event that he desired more information about the Authority and its procedures.
40.Further, the applicant's evidence in this proceeding suggests that he became aware of the Practice Direction well before the Authority made its decision in this matter. In his affidavit affirmed on 30 October 2017, the applicant referred at [12] to the Authority sending the acknowledgement letter dated 19 December 2016 to him at 37 Jaeger Square, Ballajura WA 6066 and then states at [14]:
I only came to know about [the acknowledgement letter and Practice Direction] a few months later and when I took the letter to a friend to read to me the 21 days stipulated in the IAA acknowledgement letter to respond has passed.
41.The Authority did not make a decision in this matter until 22 August 2017, some 8 months after the acknowledgement letter was sent. If the applicant became aware of the Authority's correspondence of 19 December 2016 'a few months later', that suggests that there was still some time for the applicant to provide submissions to the Authority after becoming aware of the Practice Direction and before the Authority making its decision. There is no evidence to suggest that the applicant contacted the Authority to advise that he had only just become aware of the correspondence and to request further time to provide a submission. There is nothing in the Practice Direction or the Migration Act that precludes the Authority from considering a submission provided more than 21 days after the referral. In particular, s 473FB(5) of the Migration Act does not preclude the Authority from considering a submission provided outside of the time specified in the Practice Direction.
Any analysis of whether a practice or failure to do something amounts to jurisdictional error is, of course, contextual and fact specific. Here, in circumstances where:
a)the applicant was sent a letter by the department (which on his own evidence he received) which enclosed the delegate's decision and basic information about the referral to the Authority and which provided a website address for the Authority where the applicant could obtain further information;
b)the Practice Direction is a publicly accessible document, as is the Authority’s website;
c)there is nothing in Part 7AA of the Migration Act that prevents an applicant putting a submission to the Authority; and
d)the applicant's own evidence demonstrates that he became aware of the Practice Direction well before the Authority made its decision in this matter and there is nothing that would have prevented him from requesting more time to submit a written submission (noting the scope of s.473FB(5) of the Migration Act),
it cannot be said that the applicant was deprived of an opportunity to provide a submission to the Authority.
In light of the above, and noting the particular factual circumstances of this case, it cannot be said that the applicant has been denied procedural fairness and that the Authority fell into jurisdictional error. This is so even though the Authority failed to send a copy of the Practice Direction to the applicant at his designated address.
Ground 1 accordingly fails.

Ground 2

The IAA fell into jurisdictional error by failing to conduct the review in accordance with the procedure on review established pursuant to Part 7AA of the Migration Act 1958 (Cth) by reason of the failure of the IAA to send the "acknowledgement of referral" together with the "Practice Direction for Applicants, Representatives and Authorised Recipients" to the applicants correct address.

Ground 2 largely repeats the concerns raised in ground 1 and counsel for the applicant did not seek to distinguish the two areas of concerns outlined in both grounds of review.
As such, the Court relies on its findings above in relation to ground 1 in finding that ground 2 is also not made out. To this the Court would add only that, to the extent that the applicant is suggesting that the requirements of the Practice Direction were not adhered to, that too is rejected. There is simply no evidence here that the requirements of the Practice Direction were not complied with.
Ground 2 also fails.

Conclusion

Overall, the applicant has failed to show that the Authority fell into jurisdictional error.
For the reasons outlined above, the application is dismissed.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Date: 21 January 2019