Bills Digest no. 18 2008–09
Migration Amendment (Notification Review) Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
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House: House of Representatives
Portfolio: Immigration and
Sections 1 to 3 commence
on the day of Royal Assent. All other provisions generally commence
on a day to be fixed by Proclamation, or six months after the day
of Royal Assent, which ever is the sooner. However, for items 3, 5,
13 and 15, commencement is further dependent on the commencement of
item 13 of Schedule 1 to the Migration Legislation Amendment
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
The purpose of
the Bill is to amend the Migration Act 1958 (Cth) (the
Migration Act) to provide that the Department of Immigration and
Citizenship (the Department) and the Migration and Refugee Review
Tribunals (Tribunals) no longer have to strictly comply
with the legislation s notification requirements.
The Migration Act and the Migration
Regulations 1994 (the Regulations) contain numerous provisions that
prescribe how the Department and the Migration Review Tribunal (
MRT ) and the Refugee Review Tribunal ( RRT ) will communicate with
visa applicants. These provisions are collectively known as the
The notification regime is an integral part of
the immigration processing system and associated due process in
decision-making. It prescribes that particular information may, and
in certain circumstances, must be imparted to visa
applicants in a certain way. If the Department and the Tribunals
correctly notify applicants, then they are deemed to have received
the notification and importantly, their legal rights and obligations are triggered and the
consequences for their action or inaction can lawfully
For example, section 66 of the Migration Act
provides that the Department must notify an applicant of a decision
to refuse a visa in a prescribed way. The notification must not
only contain specific information such as the criterion or
provision of the Act or Regulations that was not satisfied but also
if the applicant has a right to have the decision reviewed by the
MRT, RRT or Administrative Review Tribunal (AAT) and when the
application needs to be lodged and where etc. This information
must be provided to applicants using one of four methods
outlined in the Act, such as by post or fax.
Effective notification under section
section 494C of the Migration Act which provides that an applicant
is deemed to have received the document within a specified
time. For instance, if the document was sent within 3 working days
of the date of the document to an address in Australia, the
applicant is deemed to have received it within 7 working days after
the date of the document. An applicant wishing to have an adverse
primary decision independently reviewed must initiate the
review process within the time stipulated in the notification
(normally 21 days). Failure to do so will result in a forfeiture of
the right of review.
Importantly, a December 2007 investigation by
the Commonwealth Ombudsman into the Department s notification of
decisions and review rights found shortcomings in a number of
areas. In assessing a sample of some 1800 notifications and
statements of reasons, it found that,
DIAC s overall management of notification of
adverse decisions is not coordinated or consistent. There was
significant variation in the quality of information presented in
notification letters, many of which fell considerably short of best
practice standards. In some instances, this limited a visa
applicant s ability to seek review or successfully reapply. In
other instances, the information was overly complex, confusing and
The Minister for Immigration and Citizenship,
Senator the Hon Chris Evans reportedly stated in response to the
Ombudsman s report that he would continue to drive cultural change
in the Department to ensure that the problems identified by the
Ombudsman do not re-emerge . 
Those provisions in the legislation that
stipulate that notification must occur in a certain way,
must contain certain information, and must be
given to a specific person at a specific address in order for legal
consequences to flow, require strict compliance with their terms.
In turn, the Courts have adopted a strict interpretation of the
notification provisions irrespective of whether applicants were
actually notified, predominantly on the basis of natural justice
and parliamentary intent,
In my opinion, the provision of s 422B,
which makes the content of Division 4 and Division 7A, together
with ss 416, 437 and 438 a complete code for the discharge of
the Tribunal s obligations in relation to the natural justice
hearing rule, suggests that Parliament intended that there be
strict adherence to each of the procedural steps leading up to the
hearing. Each of the procedural steps is imperative and must be
complied with in the manner described in the Act.
Consequently, there have been numerous
judgments handed down by the courts that have found that the
Department and the Tribunals have not correctly notified
applicants. The most significant of these include:
In the Government s view, strict compliance
with the notification regime has resulted in the courts identifying
technical defects in notification which have proved difficult, if
not impossible, to address through further litigation or
administrative reforms .
The Commonwealth Ombudsman appears to a
certain extent to disagree with such a view. In investigating and
reporting on the Department s response to a significant
notification case (Srey) it observed,
Although the legislative and policy regime in
relation to notification is highly prescriptive and provides a
comprehensive guide to DIAC officers, DIAC could have done more.
DIAC could have responded to this problem in a more timely manner
to ensure that training and quality assurance measures, for
example, were in place to complement the prescriptive statutory
regime. DIAC could have alerted its staff to the potential
consequences of such deficiencies.
However, the Commonwealth Ombudsman also
As a general observation, the prescriptive
nature of the notification regime is a double-edged sword. Strict
compliance by DIAC with the legislation will be enough to ensure
legally effective notification, even if the letter remains unread
or is lost in the post. Conversely, a small deviation from the
requirements of the legislation can render the notice legally
ineffective, even though the notice was received and read.
The Department processes some 12, 000 visa
applications every day and according to the Department s
2006/07 Annual Report, there were 3678 applications and appeals to
the courts lodged against departmental or tribunal decisions
compared to 3893 in 2005 - 06 .
The Government has announced that the proposed
amendments in this Bill are the initial steps in a broader series
of measures that are being contemplated by the Government .
On 4 September 2008, the Senate Selection of
Bills Committee recommended that the Bill not be referred to a
According to at least one media report, former
Minister for Immigration and Multicultural Affairs, the Hon Kevin
Andrews, was planning to seek advice from the Commonwealth
Solicitor-General about changing the law relating to notification
if the coalition was re-elected in 2007.  Following the
discovery of so-called VEAN errors in a 2007 detention
case, he allegedly commented to the media that the VEAN
ruling and subsequent changes on the issue were undermining the
integrity of the immigration program and was quoted as having said
I think most people find it a bit absurd this just seems to me to
be mind-blowing legal pettiness .
According to the Explanatory Memorandum, the
amendments will have no negative financial impact. Rather, the
changes may result in savings to the Commonwealth in the long term
due to a reduction in litigation on issues relating to
Sections 379AA and 441AA of the Migration Act
provides that if the legislation does not specify that a document
must be given to an applicant by a specific or prescribed method,
the Tribunals may give the document by any method that it considers
Item 2 and 12 insert proposed new
subsections 379AA(2) and 441AA(2), which
provide that if an applicant is a minor (less than 18 years of
age), Tribunal staff may give documents to another person if they
believe that other person has day-to-day care and responsibility
for the minor or they work for an organisation that does so.
However, the recipient must be at least 18 years of age and their
duties must to some extent involve the care and responsibility for
the minor. The Explanatory Memorandum notes that in such cases,
carers are the people most likely to act on the notification in the
interests of the minor.
If the document is given in this way, then the
Tribunals are deemed to have given the document to the
minor, though they are not prohibited from giving the minor a copy
of the document as well.
379AA(4) and 441AA(4) provides that the Tribunals are
deemed to have validly given the document 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 them.
Importantly, where previously the onus was on
the Department and the Tribunals to correctly notify applicants,
the onus will now shift to applicants to show that they have
not been properly notified on the grounds that the
relevant error or omission has substantially prejudiced them.
It is not clear what type of error or omission
would be classified as minor or insignificant , though it appears
this would be an administrative matter for the Department or
Tribunals to determine.
It is also not clear from the wording of the
proposed amendment whether the onus is on the minor or the carer to
establish the perceived prejudice. However, it appears more likely
that it would be for the minor to do so because the same provision,
vis- -vis authorised recipients (see below) places the onus on the
applicant and not the recipient to do so.
Items 3 and 13 insert proposed
subsections 379AA(2A) and 441AA(2A).
These state that the above provisions will not apply if the minor
has applied to the Tribunal for review of a decision with another
person. In such circumstances, the Tribunals will only be required
to give the documents to one of the review applicants, not each of
Sections 397A and 441A of the Migration Act
outline the methods by which the MRT and RRT respectively can, and
in some circumstances must give documents to applicants.
The methods include:
- giving the recipient the document by hand;
- handing the document to another person at the last residential
or business address provided to the Tribunal by the recipient;
- dispatching the document within 3 working days by prepaid post
or by other prepaid means; and
- transmitting the document by fax, e-mail or other electronic
Items 4 and 14 insert proposed
subsections 379A(1A) and 441A(1A), which
specifically provide that the Tribunals may give a document to the
carer of a minor (as described above) by dispatching the document
within 3 working days by prepaid post or by other prepaid means or
transmitting the document by fax, e-mail or other electronic means.
Importantly, the note confirms that if such methods are used, then
the minor is deemed to have received the document in
accordance with the time specified in sections 379C and 441C of the
and any action required to be taken by the minor will need to be
taken within the time period specified in the document.
Items 6 and 16 provide that
if a document is dispatched to the carer of a minor within 3
working days by prepaid post or by other prepaid means, the
Tribunals must address the envelope using the last address for a
carer known by the Tribunal.
Similarly, items 7 and 17
provide that if a document is transmitted to the carer of a minor
by fax, e-mail or other electronic means, the Tribunals must use
the last fax number or electronic address that is known by the
Items 5 and
13 confirm that the above provisions will not apply if the
minor has applied to the Tribunal for review of a decision with
another person. In such circumstances, the Tribunals will only be
required to give the documents to one of the review applicants, not
each of them.
The above amendments relating to the giving of
documents to minors by the Tribunals are mirrored in items
21 26 in respect of the Minister (through the Department
of Immigration and Citizenship).
Items 9 and 19 insert
proposed new subsection 379C(7) relating to the
MRT and proposed new subsection 441C(7) relating
to the RRT.
This amendment provides that an applicant is
taken or deemed to have received a document (within the time
specified in subsections 379C or 441C) even if the document, the
envelope containing the document or any accompanying material
contains an error or omission that is minor or
insignificant. It is not clear what type of error or omission
would be classified as minor or insignificant , though it appears
this would be an administrative matter for the Department or
Tribunals to determine.
As previously mentioned, this amendment shifts
the onus to applicants to show that they have not been
properly notified on the grounds that the relevant error or
omission has substantially prejudiced them.
Items 9 and 19 also insert
proposed new subsection 379C(8) relating to the
MRT and proposed new subsection 441C (8) relating
to the RRT.
This amendment provides that if the Tribunals
purport to give a document to an applicant but makes an error in
doing so, then the applicant is taken or deemed to have received
the document or a copy of it (within the time specified in
subsections 379C or 441C) if they do actually receive it,
notwithstanding the Tribunal s error.
However, if the applicant is able to show that
it was received at a later time, then they will be taken or deemed
to have received it at that time.
Items 10 and
20 insert proposed new subsection
379G(2A) relating to the MRT and proposed new
subsection 441G(2A) relating to the RRT.
This amendment provides that the Tribunals are
taken or deemed to have validly given a document to an 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 them.
The above amendments relating to substantial
compliance vis- -vis the Tribunals are mirrored in items 27
28 in respect of receiving documents from the Minister
(through the Department of Immigration and Citizenship).
This Bill will certainly relax the
notification regime by providing that substantial compliance is
sufficient unless an applicant can show that a minor or
insignificant error or omission in the notification (the document,
the envelope or any accompanying material) causes them substantial
prejudice, or they can show that a document was received later than
deemed under the Act due to an error in dispatch.
However, it is not clear whether this Bill
will go further than intended and actually undermine the
integrity of the notification regime, particularly in light of
criticisms expressed by the Commonwealth Ombudsman in 2007 about
pre-existing systemic problems within the Department relating to
the notification of applicants.
Though the Courts have often found
notification to be invalid on the basis of what appears to be
rather trivial errors, they have also highlighted that the effect
of such errors can nonetheless lead to an absence of notification
or delayed notification which can have significant consequences for
particularly those that hold bridging visas or those that are
facing visa cancellation.
Shifting the onus onto applicants to
demonstrate that they have been substantially prejudiced by
incorrect notification or to show that they have received
notification later than deemed may indeed have the desired effect
of overcoming excessive litigation. However, in the process this
may disadvantage applicants who may not be aware that they can
dispute the notification or may not feel that they have the ability
to do so, particularly if language and cultural barriers exist
and/or they are unrepresented.
As the Commonwealth Ombudsman astutely
Individual judicial decisions can cause
additional and unexpected costs for agencies and impose a
considerable administrative burden. This is a contemporary reality
for government administration, particularly in areas of complex
administration where there is frequent litigation.
16 September 2008
Bills Digest Service
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