SZFLM v Minister for Immigration
[2007] FMCA 1
•22 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFLM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong member – applicant declining hearing invitation – RRT sending applicant an incomplete copy of its reasons – non compliance with s.430B(6) of the Migration Act 1958 (Cth) – whether that non compliance constitutes a jurisdiction error considered. |
| Migration Act 1958 (Cth), ss.430, 430B |
| SAAP v Minister for Immigration (2005) 215 ALR 162 SZICO v Minister for Immigration & Anor [2006] FMCA 435 SZIVA v Minister for Immigration [2006] FMCA 1494 WACB v Minister for Immigration (2004) 210 ALR 190 |
| Applicant: | SZFLM |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG78 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 17 October 2006 |
| Date of last submissions: | 8 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2007 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondents: | Ms R Pepper |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Court directs that the name of the first respondent be amended to the “Minister for Immigration and Citizenship”.
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG78 of 2005
| SZFLM |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 16 December 2004. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon his practice of Falun Gong. I adopt the following statement of background facts relating to the applicant’s protection visa claims and the Tribunal decision on them from the Minister’s outline of written submissions filed on 11 October 2006, with necessary amendments.
The applicant is a citizen of China, he arrived in Australia on 14 September 2004. On 21 September 2004, he lodged an application for a visa with the Minister’s Department (“the Department”) under the Migration Act1958 (Cth) (“the Migration Act”). On 25 October 2004 he applied to the Tribunal for a review of that decision (court book, pages 45-48).
The applicant claims persecution on the ground of his religion. In short, the applicant claimed to fear persecution by the Chinese government because he was a member of Falun Gong. The applicant’s claims are that (court book, page 35):
a)he was the Chief of the Price Bureau and became a practitioner of Falun Gong in 1998;
b)because the organisation was banned in 1999, he had to hide the fact that he practised Falun Gong;
c)he continued to practise however, and involved other members of his work place;
d)in March 2004 whilst he was practising, the police arrested 15 members of the group and some were mistreated. With the help of fellow members within his workplace he came to Australia to obtain protection; and
e)he fears persecution were he to return to China because of the evidence the authorities have against him.
Tribunal decision
The Tribunal noted that the applicant had advised the Tribunal in writing that he did not wish to give oral evidence at a hearing (court book, page 53), notwithstanding that it had informed the applicant that it had considered the material before it in relation to his application but was “unable to make a decision in your favour on this information alone” (court book, page 51).
The Tribunal affirmed the decision of the delegate on the basis that it was not satisfied on the vague and limited available evidence before it that the applicant was a practitioner of Falun Gong, or that he had come to the attention of Chinese officials and had therefore fled the country for this reason (court book, pages 69.7-70).
The application
These proceedings began with a judicial review application filed on 11 January 2005. The applicant now relies upon an amended application filed on 10 May 2005. That application sets out the following seven grounds of review:
1. The Tribunal failed to send me a complete set of decision letter, I received only five pages, I don’t know the reasons why the Tribunal refused my application. The Tribunal refused my application without giving any reasons except my absence to the hearing offered by them. I could not change it, I called to apply for the change of my hearing date and I was refused. I lost the chance of attending the hearing.
2.The Tribunal failed to consider to my claims properly.
3.The Tribunal did not refer to any of the independent information for the consideration of my application.
4.The Tribunal did not provide me an adequate opportunity to respond the substance of the information.
5.The Tribunal did not carefully consider my application because of the bias against me, and their doubt about my credibility, they made a decision based on some assumption and not the factual materials.
6.The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
7.The Tribunal did not exercise its jurisdiction properly as it failed to have any finding in whether I would be persecuted on my return to China.
The legislation
Section 430B of the Migration Act 1958 (Cth) (“the Migration Act”) provides as follows:
(1)This section applies to any decision on a review by the Tribunal other than the following decisions:
(a)a decision that is given orally;
(b)a decision on the application of a person who is in immigration detention.
(2)On the day, and at the time and place, specified in the notice referred to in section 430A, the decision on the review is to be handed down (on behalf of the Tribunal) by:
(a)the Principal Member; or
(b)a person authorised in writing by the Principal Member to hand down decisions.
An authorisation may set out the circumstances in which a person is authorised to hand down decisions.
(3) The Tribunal's decision may be handed down:
(a)by reading the outcome of the decision; and
(b)whether or not either or both the applicant and the Secretary are present.
(4)The date of the decision is the date on which the decision is handed down.
(5)If the applicant and the Secretary are present at the handing down of the decision, the Tribunal must give each of them a copy of the statement prepared under subsection 430(1).
(6)If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is handed down; and
(b)by one of the methods specified in section 441A.
(7)If the Secretary is not present at the handing down of the decision, the Tribunal must give to the Secretary a copy of the statement prepared under subsection 430(1). The copy must be given to the Secretary:
(a)within 14 days after the day on which the decision is handed down; and
(b)by one of the methods specified in section 441B.
(8)Without limiting the generality of subsections (6) and (7), an applicant or the Secretary is taken not to be present at the handing down of a decision if:
(a)he or she is not at the same location as that of the person who is handing down the decision when the decision is handed down; and
(b)the decision is being handed down by:
(i) telephone; or
(ii) closed‑circuit television; or
(iii) any other means of communication.
(9)A reference to the applicant or the Secretary being present at the handing down of the decision includes a reference to a representative of the applicant or Secretary being present.
The evidence
I received as evidence the court book filed on 10 February 2005. I also received as evidence[1] what purports to be the original of the letter sent by the Tribunal to the applicant on 16 December 2004 enclosing a copy of the Tribunal decision and certain other documents. Notwithstanding that the applicant had not taken the opportunity to file any affidavit evidence in support of his application, I gave the applicant the opportunity to give oral evidence, noting that the documentary record provided some support for his contention that the Tribunal failed to give him a complete copy of its decision record. I wanted to know, in particular, what the applicant could tell me about exhibit A1[2].
[1] exhibit A1
[2] I received exhibit A1 as evidence only after hearing the applicant’s oral evidence
The applicant’s oral evidence was of limited help in clarifying the status of exhibit A1. The applicant stated that he received a copy of the Tribunal decision but could not remember whether any letter was enclosed with it. He recalled that he went to see “a friend” to collect the decision because it was the address of the friend that the applicant used as his address for service before the Tribunal. He said that he was given the sealed envelope containing the Tribunal decision which he opened at home. The applicant had no clear recollection of the letter appearing on page 55 of the court book or at exhibit A1. He thought that the pages in the envelope were stapled together. He only realised that there was a page missing in the decision record when he was told that by another friend who read the decision to him. The applicant only knows that friend as “Jack” and lost contact with him in 2005. For some reason, which the applicant did not adequately explain, he expected that the Tribunal would send him a complete replacement copy of the decision. He made no contact with the Tribunal to obtain a complete copy himself.
I ruled that while I would receive exhibit A1 as evidence, given the inability of the applicant to identify the documents comprising the exhibit, there was doubt about the provenance of those documents, and there was a risk that the copy of the Tribunal decision stapled to the Tribunal letter might have been tampered with. I made clear that the probative value of the exhibit was limited by those doubts and concerns.
Submissions
In his oral submissions, the applicant submitted that he had asked the Tribunal for an extension of time but later clarified that statement to say that he had asked a friend to write to the Tribunal requesting an extension of time for the hearing. He accepted that he did not go to the hearing to which he was invited by the Tribunal and that he had in fact declined the hearing opportunity. He asserted that he subsequently changed his mind and that had thus been deprived of an opportunity to seek to persuade the Tribunal that he was a refugee, but accepted that there was no evidence to support his contention of an approach to the Tribunal for a new hearing date.
The applicant maintains that the Tribunal erred by not giving him a complete copy of its decision record. He maintains that the first time he saw a complete copy of the decision was when he received the court book.
The Minister makes the following written submissions:
It is not clear whether or not the Tribunal sent the applicant a complete set of its reasons (page 5 appears to have been missing: CB 69). However, even assuming that it did not, the first respondent submits that this omission did not result in the Tribunal committing a jurisdictional error because at the time of the handing down of the decision, the jurisdiction of the Tribunal insofar as its determination of whether or not the applicant satisfied the criteria of a refugee was spent.
At its highest, the missing page could only ground a breach of s 430B(6) (although this is not conceded by the first respondent). However, the first respondent submits that the better analysis is that the mandatory prescription of that provision was complied with by the Tribunal; the decision was provided to the applicant albeit with a page missing.
There is, moreover no evidence of the applicant ever having requested that the missing page be sent to him. In such circumstances, and given the failure of the applicant to attend the hearing or provide any further information to the Tribunal, this Court should exercise its discretion to refuse relief in respect of any breach of s 430B of the Act.
Further, while the reasons of the Tribunal were brief, this is explained by the fact that the Tribunal did not have adequate information to make a decision in the applicant’s favour and the failure by the applicant to attend the hearing and provide further evidence in this regard.
In the circumstances, it is difficult to envisage, given the brevity with which the applicant described his claims and his decision not to furnish the Tribunal with any additional information, what further deliberation the Tribunal could have given to the very limited evidence before it.
Thus in the circumstances, and for the reasons given above, this ground of review must be dismissed.
Failure to consider the applicant’s claims
The first respondent repeats the submissions immediately above. Furthermore it is clear upon any reading of the Tribunal’s reasons that it did consider the applicant’s claims (CB 69-70). Thus the Tribunal simply did not reach the requisite level of satisfaction required in order to determine that applicant was a refugee pursuant to the Convention: SJSB v MIMIA [2004] FCAFC at [15]-[16].
Failure to consider independent information
No particulars are given by the applicant as to what independent information it is alleged that the Tribunal failed to have regard to. Certainly it cannot be evidence that the applicant submitted to the Tribunal, because he did not do so.
Further, if is suggested by this ground of review that the Tribunal ought to have, of its own volition, sought independent information, then it is submitted that it is for the applicant to advance whatever evidence he seeks to rely upon in support of his case and not the Tribunal (Abebe v The Commonwealth (1999) 162 CLR 510 at [90], [187] and [190]).
Accordingly this ground of review ought, without more, to be rejected.
Failure to afford procedural fairness
The Tribunal did give the applicant an opportunity to be heard, namely, the letter inviting the applicant to give further information to it by the applicant’s attendance at a hearing (CB 51). No evidence is given by the applicant as to why he chose not to attend the hearing (CB 53). To the contrary, there is evidence demonstrating that he elected not to appear at the hearing.
In the circumstances, the Tribunal was entitled to proceed directly to a decision without giving the applicant any further opportunity to be heard: ss 424 and 425 of the Act.
No breach of procedural fairness has therefore occurred.
Bias
No particulars are given of this ground of review. Because the applicant has not identified any particular material or findings in support of this complaint and there is no evidence in the present case of an actual state of mind of the Tribunal which would constitute actual (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [71]-[72]), or even apprehended, bias (Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344), this ground of review ought to be rejected.
Irrationality/illogicality
The finding by the Tribunal that it did not have sufficient evidence to find that the applicant was a refugee was neither irrational nor was it illogical in the restricted way that concept has been employed: MIMIA; Ex parte Applicant S20/2002 (2003) 198 ALR 59. This ground must be dismissed.
Failure to exercise jurisdiction
The Tribunal did have regard to whether or not the applicant would be persecuted were he to return to China (CB 70.3) and concluded that he would not, because on the vague and limited information before it the Tribunal was not satisfied that the applicant was an adherent of Falun Gong (CB 70.2): SJSB at [15]-[16]. Accordingly, there was no failure by the Tribunal to exercise jurisdiction in this (or any other) regard. This ground must be rejected.
Breach of s 424A
To the extent that the Tribunal only had before it the applicant’s protection visa application and the decision of the delegate in reaching its decision, it could be suggested that the Tribunal, in referring to this information, breached s 424A of the Act.
However, upon proper analysis of the Tribunal’s reasons (see SZEEU v MIMIA [2006] FCAFC 2 at [208]-[216]), it is clear that the provision was not enlivened because “the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state” (emphasis added): SZCIA v MIMIA [2006] FCA 238 at [12] per Allsop J. Accordingly, s 424A has no application to the present matter.
Alternatively, if s 424A(1) was engaged, the first respondent submits that the Tribunal clearly did inform the applicant in writing of the information, or in this case the lack of information, which formed the reason for affirming the decision below. That is, the relevant “information” for the purpose of s 424A was the lack of evidence before the Tribunal in order to permit it to make a favourable decision. Of this the applicant was clearly informed by the Tribunal and he was invited to, in effect, comment upon it by providing some further explanation. Thus the letter at CB 51 fulfilled the requirement of s 424A(1) and no breach occurred.
Finally, and in any event, given the applicant’s election not to avail himself of the opportunity to appear before the Tribunal at a hearing and not to furnish the Tribunal with additional evidence, were the Court to find a breach of s 424A of the Act (which the first respondent refutes), it ought to exercise its discretion against the granting of the relief sought.
Conclusion
There having been no jurisdictional error committed by the Tribunal, the Tribunal’s decision is a privative clause decision pursuant to s 474 of the Act and the application for review should be dismissed with costs. (respondent’s emphasis retained)
In her oral submissions, Ms Pepper, for the Minister, contended that there was no clear evidence of a failure by the Tribunal to give a complete copy of its decision to the applicant. She noted that the provenance of exhibit A1 was uncertain and that it could have been tampered with. She conceded, however, on instructions from her instructing solicitor, that the Tribunal file obtained by the Minister’s solicitors held a copy of the Tribunal decision with a page missing and no other copy. The Minister’s solicitors later obtained a complete copy of the Tribunal decision from the Tribunal. This explains why there are two copies of the decision record in the court book, commencing at page 59. The first is incomplete and the second is complete.
Ms Pepper also submitted that, even if the Tribunal provided the applicant with an incomplete copy of its decision, there is no legal consequence of that error. The reasons for the Tribunal decision always existed and hence there has been no failure to comply with s.430. Further, at least at the time of the trial of this matter on 17 October 2006, the applicant had been notified of the Tribunal decision because a complete copy of the decision record had been included in the court book. Ms Pepper submitted that s.430B(6) was not a provision which goes to jurisdiction.
I invited further submissions from the parties on the impact, if any, of the High Court decision in WACB v Minister for Immigration (2004) 210 ALR 190, or any subsequent court decisions applying that decision. Additional written submissions on behalf of the Minister were filed on 8 November 2006 and are relevantly as follows:
The High Court decision in WACB concerned the precursor to ss 430-430D, viz, s 478 of the Migration Act 1958 (Cth) ("the Act"). In particular it concerned whether or not an applicant, having been told of the Tribunal’s adverse decision and that he had 28 days to lodge an ‘appeal’ by the manager of Villawood, had been properly notified of the decision pursuant to s 430D(2) of the Act.
The High Court held that he had not, and that accordingly, the strict time limits in which to file an application for juridical review set down in s 478 had not begun to run, and that therefore, the first respondent’s burden of establishing the objection to competency had not been discharged.
The High Court noted in its decision that ss 430-430D were a code in respect of the notification of the Tribunal’s decision to the applicant (at [12]). However, at its highest the decision stands for the proposition that “give” in s 430D(2) means physically give to the applicant (at [32]). Such a conclusion is unremarkable given that “one rationale of the code may be to ensure that applicants are informed of RRT decisions so as to minimise the scope for complaints of lack of procedural fairness” (at [13]). Thus the need to physically give the decision to an applicant who is in detention in order to ensure that he or she is actually notified of any adverse decision given that the applicant is precluded from attending the handing down of the decision.
The decision does not stand for the proposition that a breach of s 430D(2) amounts to jurisdictional error. This is because “s 478 does not ‘bar an existing cause of action’; rather, ‘[i]t imposes a condition which is of the essence of a new right’.” (at [31]). Accordingly, s 430D(2) merely acted as a precondition to the exercise of rights of review of the Tribunal decision by the Federal Court of Australia. Put another way, the provision did not act as a condition going to the exercise by the Tribunal of its jurisdiction.
The reasoning of WACB in this regard is directly applicable to the facts of the present case. The Tribunal, having given reasons and having handed down its decision, had exercised its jurisdiction to exhaustion. While it is undeniable that some breaches of the statutorily prescribed procedural requirements result in jurisdictional error, for example s 424A, there in nothing in the language of s 430B(6), or the scope and object of the Act, which suggests that Parliament intended that an act done in breach of the provision renders a Tribunal decision invalid: SAAP v MIMIA (2005) 215 ALR 162 at [72]-[73] per McHugh J. This is because, and unlike s 424A, the step mandated by s 430B(6) is not one that the Tribunal must take in conducting its review: SAAP [204]-[209] per Hayne J.
Therefore, in the present proceeding, an application of the decision in WACB means that the effect of any breach of s 430B(6) of the Act (this is not conceded by the first respondent) is that notification of the Tribunal decision did not occur until such time as the provision was complied with, that is, until such time as the applicant was given a complete copy of the decision when he was in detention.
However, as no issue of time limitation exists in this case, and there is no evidence of the applicant having been prejudiced in any way with respect to his rights of judicial review by the late notification, the applicant’s application for judicial review must fail on the basis that no jurisdictional error has been demonstrated on the part of the Tribunal.
In any event, it must be borne in mind that, as demonstrated by the applicant’s oral evidence, the applicant had been notified of the result within 14 days of the adverse decision being handed down and at no stage did he make any attempt whatsoever to obtain the page of the Tribunal’s reasons that he knew to be missing. Accordingly, even if any breach of s 430B(6) could result in jurisdictional error, as a matter of discretion, this Court ought not grant relief in the circumstances: SAAP at [79] –[84] per McHugh J and [211] per Hayne J.
The applicant filed a two paragraph additional submission on 25 October 2006 in which he asserted that there was a failure to comply with s.430B(6) which invalidated the Tribunal decision.
Reasoning
There is no substance to the applicant’s grounds of review, except the first ground. I deal with that ground in my reasons which follow, and I accept the Minister’s submissions in relation to the other grounds. In relation to the first ground of review, there is a question of fact to answer and, depending on the answer to that question, a question of law to answer. The question of fact is whether the Tribunal failed to provide a complete copy of the record of its decision within 14 days of the handing down of that decision? If the answer to that question is “no”, the question of law is, what legal consequence flows from that failure?
Did the Tribunal give the applicant a complete copy of its reasons?
Notwithstanding my doubts at trial about the provenance and integrity of exhibit A1, I am prepared to infer that an incomplete copy of the Tribunal’s reasons was provided to the applicant with the Tribunal letter dated 16 December 2004. I draw that inference based upon the following facts:
a)the Tribunal letter appears on page 55 of the court book and is followed by an information sheet and an incomplete copy of the Tribunal reasons;
b)as is conceded by the Minister’s legal advisers, the Tribunal file contained only an incomplete copy of those reasons;
c)the applicant asserted in his original judicial review application that the RRT decision sent to him was missing a page and the application noted at ground 3 that “a copy of the decision letter from the RRT (original) is attached”;
d)exhibit A1 was contained in the correspondence file on the court file and the first page appears on its face to be the original of the decision letter sent to the applicant by the Tribunal. That letter has had the court file number stamped on it, presumably by the registry, and it is possible that the letter and the documents attached to it were separated from the original application by the registry;
e)exhibit A1 contains the same information sheet as is contained in the green book, as well as the same payment slip and the same incomplete copy of the Tribunal decision record; and
f)the applicant’s oral evidence, although in many ways unhelpfully uncertain, was that the copy of the Tribunal decision he received was incomplete.
I find, on the balance of probabilities, that exhibit A1 was filed with the original judicial review application and that it contains the incomplete Tribunal decision that was sent to the applicant.
There is no evidence that a complete copy of the Tribunal decision was given to the applicant by the Tribunal (or anyone else) within 14 days of the handing down of the Tribunal decision on 16 December 2004. I find that the copy of the Tribunal decision record that was given to the applicant within that time was incomplete. The answer to the question of fact is “no”.
What is the legal consequence?
The Tribunal did not comply with its obligation under s.430B(6) of the Migration Act. That provision required the Tribunal to notify the applicant of the decision by giving the applicant a copy of the statement prepared under s.430(1) by a specified method within 14 days of the day on which the decision was handed down. The copy of the decision sent to the applicant was missing page 5 of the decision record which set out the reasons for the Tribunal decision. Those reasons were quite brief. The incomplete copy of the decision record sent to the applicant was sufficient to enable the applicant to understand what decision was made by the Tribunal. It was insufficient to enable the applicant to understand why the decision was made.
Section 430B is part of a code of procedure which, relevantly, requires that an applicant be given notice of not simply the decision made by the Tribunal but the reasons for it: WACB v Minister for Immigration (2004) 210 ALR 190 at [29] and [36]. The High Court decided in that case that where the code of procedure was not complied with, time did not run for the purposes of the statutory provisions imposing time limits on judicial review applications to a court. That remains the position, in my view, in relation to the presently existing time limits: SZICO v Minister for Immigration & Anor [2006] FMCA 435 at [14][3].
[3] see also the useful and extensive discussion of time limits by Smith FM in SZIVA v Minister for Immigration [2006] FMCA 1494
The remaining question is whether the suspension of the running of time for the purposes of statutory time limits on judicial review is the only consequence of a failure by the Tribunal to comply with its obligations under the code of procedure relating to the notification of its decisions? Does a failure to comply with that code also amount to a jurisdictional error? That question does not previously appear to have been addressed by a court. The answer to that question requires an analysis of the statutory provisions in their context, including a consideration of the consequence of non compliance with the code: SAAP v Minister for Immigration (2005) 215 ALR 162 at [72] per McHugh J[4].
[4] see also [204]-[208] per Hayne J
The function of the Tribunal is to review protection visa decisions in accordance with Part 7 of the Migration Act. Ordinarily, the Tribunal must make a decision on review applications. Section 430B requires that those decisions must be handed down. It is apparent from the language of Division 5 of Part 7 of the Migration Act that once a decision is handed down in accordance with s.430B, the decision making function of the Tribunal is completed. However, the jurisdiction of the Tribunal is not thereby exhausted. The code of procedure encompassed in Part 7 includes an obligation of notification of decisions to applicants. That is part of the statutory obligations of the Tribunal and its jurisdiction is not exhausted until such time as all of its statutory functions and obligations have been completed. However, the notification obligation under s.430B(6) is separate from and subsequent to the decision making function of the Tribunal. In my view, provided that a failure to comply with a notification obligation under s.430B does not prevent action being taken upon a decision (either to enforce it or to seek judicial review of it) the failure to give a required notification does not invalidate the decision required to be notified.
Section 430B was inserted into the Migration Act by the Migration Legislation (Amendment) Act (No 1) 1998 (Cth). The explanatory memorandum and the government’s second reading speeches in the House of Representatives and the Senate in relation to the Bill underscore the jurisdictional importance of handing down a tribunal decision. They also underscore the jurisdictional importance of key safeguards in the code of procedure imposed by Part 7 of the Migration Act in relation to the giving of prescribed notices of the timing of a hearing and invitations to comment on adverse material. The extrinsic aids to interpretation are not illuminating in relation to sub section 430B(6) but it is apparent on the face of the subsection itself that the parliamentary intention in the sub section was to seek to ensure that applicants are notified of tribunal decisions in a reliable and timely manner. The potential mischief resulting from a failure to comply with sub s.(6) is that an applicant may hypothetically be deprived of the opportunity of seeking judicial review of a tribunal decision. However, as was made clear by the High Court in WACB, that mischief does not in fact arise because time does not run for the purposes of statutory time limits on access to the courts until the required notification is given. Hypothetically, an applicant might challenge a purported notification of a tribunal decision which did not meet the requirements of s.430B(6) but there would be no point in doing so, given that in the absence of the required notification, it remains open to an applicant to apply in this Court or the High Court to challenge the Tribunal decision, not simply the notification.
It follows, and I find, that compliance with s.430B(6) is not generally a condition subsequent to the making of a lawful decision in accordance with Part 7 of the Migration Act. It is a separate and enforceable statutory obligation on the Tribunal and a failure to comply with it, in accordance with the High Court decision in WACB, will render inoperative current statutory time limits on judicial review applications to the courts. The point is academic in this case as the judicial review application was filed within the prescribed time limit.
It is unnecessary to determine whether there is any other legal consequence of a breach of s.430B(6). There is no other legal consequence on the facts of this case. I do not, however, rule out the possibility that there may be some other legal consequence in another case where some other right or benefit of value to an applicant is lost by reason of a failure to comply with the sub section.
I will order that the application be dismissed.
Costs should follow the event. I will hear the parties as to the quantum of the costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 February 2007
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