WACA v Minister for Immigration & Multicultural Affairs

The appellant's age 5 The possibility that the appellant was under the age of 18 at the time his application was made was raised, not before the Tribunal, but for the first time in amended grounds of review before the primary judge. The significance of the appellant's age, as put to the primary judge, can be explained briefly. 6 It is not in contention that the appellant's application to this Court for a review of the Tribunal's decision was lodged more than 28 days after he was told of the Tribunal's decision. Assuming that the appellant being told of the decision amounted to him being "notified" within the meaning of s 478(1)(b), then his application was out of time. (The issue of notification is discussed below, commencing at [10]). The Court has no jurisdiction to hear an application that is out of time and no power to allow an applicant to lodge an application outside the period specified in s 478(1)(b) or to extend the period for lodgment. It was submitted, however, that if the appellant was under the age of 18, then the application, having been made by a minor, was void. Consequently, it was submitted, any decision made in relation to such an application is also of no effect. 7 It was also put to the primary judge that if the appellant was a minor, the Minister was the appellant's guardian pursuant to s 4AAA and s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) ("Guardianship Act"). That being so the Minister could not apply for a protection visa on the appellant's behalf because of the conflict between his duty as statutory guardian and his duty as decision-maker under the Act. It followed therefore that the Minister could not validly refuse the appellant's application. 8 The argument that a minor cannot make a valid application for a primary visa was addressed by the primary judge in Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 1516 ("Jaffari"), which was heard together with the appellant's application. In that case his Honour pointed out (at [37]) that there is nothing in the Act to say that "an unaccompanied minor cannot make a valid application for a visa and more particularly for a protection visa without the intervention of a guardian." His Honour concluded that the question is one of factual rather than legal capacity. 9 In any event the primary judge found that these submissions concerning the validity of the appellant's application failed on the threshold question of age. He noted numerous occasions where the appellant's age was referred to as being eighteen years old. These included: · the initial record of interview which referred to his date of birth as "1982"; · the application for a protection visa which showed "1982" as his date of birth; · the statement attached to the protection visa application which stated "I am a young 18 year old Afghan Hazara"; · the application to the Tribunal which showed his date of birth being "1982" · a written submission by his advisers dated 27 February 2001 where it was stated, "[o]ur client is an 18 year old Hazara"; · the transcript of the Tribunal hearing where the appellant stated his age was "18"; and · the evidence to the Tribunal where he stated "My father told me that I am 18 years old". The primary judge stated that, while no question of a formal onus of proof arises in the Tribunal, it does before the Court. Thus, it was "for the [appellant] to demonstrate by admissible evidence that he is a minor." The primary judge indicated that no such evidence was before the Court and there was therefore no basis upon which he could make such a finding.

Notification of the Tribunal's decision 10 The other issue considered by the primary judge related to the question of notification of the Tribunal's decision. Submissions on this point were also directed to avoiding the strict time limit imposed by s 478(1)(b) of the Act. The issue was whether the manner in which Mr Wallis told the appellant of the Tribunal's decision was sufficient to constitute notification such that from that date, time started to run under s 478(1)(b). The primary judge held that the question was one of fact, "that is, was the notification effective to communicate to the applicant the decision of the Tribunal and was that communication understood." 11 His Honour held that it was "plain on the evidence" that the appellant understood the nature of the Tribunal's decision. He relied on the majority judgment in Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 ("Long")and the case of Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 in support of his conclusion that the decision having been adequately communicated was therefore notified to the appellant by Mr Wallis on 26 March 2001. Consequently, his Honour held, the application was lodged out of time and the Court lacked the jurisdiction to entertain it. In light of his findings, the primary judge did not need to consider matters raised by the appellant in relation to the interaction of Commonwealth legislation and State laws relating to child welfare. 12 In responding to a submission that the appellant's age imposed some additional duty in respect of notification, his Honour referred to his reasons in Jaffari which was handed down on the same day as his Honour's decision in this case. In Jaffari at [40] his Honour stated that notification under s 478(1)(b) could be oral or written and continued: "There is nothing in the Act to say that a notification to an unaccompanied minor is not a notification for the purposes of the Act. If the unaccompanied minor be of tender years then it may be, as a matter of fact, that no effective notification could be given for that word presupposes a giver and a receiver who can understand what it is that he or she has been told. As appears from the Shorter Oxford English Dictionary the relevant meaning of the word "notify" is "to give notice to; to inform". Notification is not effective to a receiver who cannot understand it. This no doubt has implications for those cases in which it can be shown as a matter of fact that the recipient of the notification did not comprehend what he or she was being told. This may arise in a case of persons of tender years. It may arise also in the case of persons under an intellectual disability. It also has the consequence that notification must be in a language comprehensible to the recipient of the notification." 13 Having found the Minister's notice of objection to competency was made out, the primary judge ordered that the appellant's motions of 31 August and 13 September 2001 and the application for review of the Tribunal's decision not to grant a protection visa be dismissed. THE APPEAL 14 At the hearing of the appeal, Dr Cameron, counsel for the appellant, was given leave to amend the grounds of appeal. As amended those grounds state that the primary judge erred in law when he held: (a) that the application was incompetent as not having been lodged in accordance with s 478(2) of the Act; and (b) that it was for the appellant to lead evidence of the fact that he was a minor in order "to invoke the protective jurisdiction of the Court."

The first ground of appeal 15 This ground is based on the appellant's submission that he was never notified of the Tribunal's decision within the meaning of s 478(1)(b) and consequently time has never run against him under that section. The primary judge's views on this issue are set out at [10] to [13] above. It was submitted that the decision in Long on which the primary judge relied is distinguishable on its facts and, in any event, that amendments to Div 5 of Pt 7 of the Act effected by the Migration Legislation Amendment Act (No. 1) 1998 (Cth) since Long mean that the case is no longer good authority as to the meaning and import of s 478 of the Act. 16 Section 478 (1)(b) provides that an application for judicial review of the Tribunal's decision must: "be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision." Section 478(2) provides: "The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)." 17 The provisions relevant to the notification of the Tribunal's decisions and the provision of reasons are to be found in Div 5 of Pt 7 of the Act. Section 430 provides as follows: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." Sections 430A, 430B, 430C and 430D all deal with the handing down of the decision or the provision of the s 430 statement to an applicant. Sections 430A and 430B are not relevant here as they expressly state that they do not apply to a decision on the application of a person who is in immigration detention. Similarly s 430C is not relevant as it refers to the handing down of a decision under s 430B. Section 430D(1) refers to decisions that are given orally and s 430D(2) to those where the applicant is in immigration detention. Only s 430D(2) is relevant here. It provides as follows: "(2) If the applicant is in immigration detention, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 430(1) within 14 days after the decision concerned is made." 18 Counsel for the appellant submitted that, as a matter of construction, there can be no notification of the decision until the applicant is given a copy of the s 430(1) statement in accordance with s 430D(2). It is not, in his submission, sufficient for an applicant to be told of the outcome of the application to the Tribunal. Moreover, there can be no notification unless and until the s 430 statement is given in a language comprehensible to the applicant. He relied on the primary judge's observation (quoted at [12] above) that notification is not effective to a receiver who cannot understand it. In this case, although the appellant was handed a copy of the s 430 statement at the same time as he was told (through an interpreter) of the Tribunal's decision, it was not, and never has been, translated for him or its contents communicated to him by the Minister or an officer of the Minister's department. Consequently, it is submitted, there has been no notification within the meaning of s 478(1)(b). 19 We do not accept the appellant's submission. Section 430 clearly draws a distinction between the Tribunal's decision and statement that the Tribunal is directed to prepare containing, among other things, the reasons for the decision. The distinction is maintained in ss 430A and 430B. Section 430D(1) makes the same distinction, referring to the "oral decision" of the Tribunal as something that is quite separate from the statement that must be given to the applicant. Similarly s 430D(2) requires the statement "prepared under subsection 430(1)" to be given to an applicant "within 14 days after the decision concerned is made" (our emphasis). The Act clearly contemplates that a decision may be handed down and the s 430 statement provided at a later time; see for example s 430B(3) to (6). 20 Section 478(1)(b), the crucial section for present purposes, refers to the applicant being notified of the "decision". There is no reason in our opinion to give the word, "notified" in s 478(1)(b) other than its ordinary meaning of "giving notice to" or "informing". Nor is there any reason to ignore the distinction between the "decision" and "the reasons for the decision" that is so clearly applied in s 430. 21 Contrary to the appellant's submissions we consider that the decision of the Full Court in Long is precisely in point. The amendments to s 430 since Long was decided do not affect the regime applying to applicants in detention and the provision considered there by the Full Court is in the same terms as is the present s 430D(2). The same argument as the appellant puts to us, was put to the Full Court in Long. That argument, as summarised by Jenkinson J at 167, was as follows: "Counsel for the appellants submitted that, since Pt 8 of the Migration Act had ordained a scheme of judicial review, of administrative decisions about the entry into, or the exclusion from, Australia of persons claiming entry as immigrants and visitors and refugees, which was in most cases practically feasible only by reference to the reasons for decision, the construction of s 478(1)(b) ought to be influenced by the purpose of ensuring that the period for taking legal advice and, if seeking judicial review, for lodging the application was a reasonable period. That purpose could best be achieved … by understanding the words "notified of the decision" as requiring that the reasons for the decision be made known to the person adversely affected by the decision." 22 His Honour's view of the matter was stated as follows: "Throughout Div 2 of Pt 8, in which s 478 is found, the word "decision" is in my opinion used in a sense which excludes reference to reasons for the decision or to a written statement of the decision. In my opinion that is the sense in which the word is used in s 478(1)(b). By a means intelligible to each appellant … she was informed that the Refugee Review Committee had decided that she was not a refugee and that she was not entitled to the visa she sought. It was not suggested that an appellant did not understand, or did not believe, that the information thus communicated had come from the Tribunal, by means of the letter which the manager of the Centre had in his hands. In those circumstances it must be concluded, in my opinion, that each appellant was "notified of the decision", within the meaning of those words in s 478(1)(b) when that information was communicated to her." 23 The circumstances that Jenkinson J describes are the same as those under consideration here. It was suggested however, that even if the distinction between the Tribunal's decision and the reasons for that decision is maintained the combined effect of s 478(1)(b) and s 430D is that the decision can only be notified by providing an applicant with a copy of the statement which, in accordance with s 430(1)(a) sets out the decision of the Tribunal. Because the s 430 statement was given to the appellant at the same time as Mr Wallis communicated the Tribunal's decision (see [3] above) it is not necessary for us to decide if communicating of the decision without providing the s 430 statement would amount to notifying him within the meaning of s 478. 24 It is also unnecessary to deal with the appellant's submission that effective notification for the purposes of s 478(1)(b) requires the statement to be provided in a language which an applicant understands or perhaps, otherwise communicated to an applicant. The appellant contends that the provisions of s 430(1) would be nugatory for applicants in detention if this is not so. Moreover, it is submitted, knowledge of the contents of the s 430(1) statement is essential if an applicant is to formulate an application for review in accordance with s 478(1). Whether or not this is correct (and we express no opinion on the point) in this case the decision was communicated to the appellant in the explanation given by Mr Wallis through an interpreter and there has been no challenge to the primary judge's conclusion that the appellant understood what was said to him. Thus, in so far as the decision is contained in the statement, that aspect of the statement was communicated to the appellant. 25 We note, however that the proposition put forward by the appellant would seem to be inconsistent with the decision of the Full Court in Nguyen v Refugee Review Tribunal (1997) 74 FCR 311. It may also be that the necessity (identified by the primary judge in Jaffari and by the Full Court in Long) for the communication of the Tribunal's decision in a manner comprehensible to an applicant is inconsistent with Nguyen.

The second ground of appeal 26 It is submitted for the appellant that given the uncertainty as to the age of the appellant when his application for a protection visa was made the Minister was under a duty to make further inquiries to satisfy himself whether the appellant was a non-citizen child to whom he owed protection. For this reason the second ground of appeal alleges that the learned primary judge was in error in determining that it was for the appellant to lead evidence of the fact that he was a minor in order to invoke the protective jurisdiction of the Court. 27 The appellant contends that he should have been given the benefit of any doubt, and should have been treated as a non-citizen child, until his age could be satisfactorily established, or until he elected to be treated as full age. A substitute guardian should have been appointed to assist the appellant in the application and review process and independent legal advice should have been provided. It is further said that the Minister has a responsibility under s 6 of the Guardianship Act to ensure that the Tribunal's decision in this matter was translated for the appellant's benefit, and that the appellant was given legal assistance for the preparation of an application for judicial review and the filing of the review within the prescribed time. 28 In opposing these submissions the Minister contends it was incumbent upon the appellant to establish by admissible evidence that he was a minor at the relevant time. The Minister notes that the appellant's submission as to the age of the appellant in reality raises the "no evidence" ground of review under s 476(1)(g) and s 476(4)(b) of the Act. In essence, the appellant is claiming that the Tribunal based its decision on the fact that he was 18 years of age when that fact did not exist. The Minister submits that an applicant who alleges that a particular fact did not exist is required to establish by admissible evidence that the fact did not exist. In line with authority, it is submitted, the primary judge was correct in holding that it was for the appellant to demonstrate on admissible evidence that he was a minor. 29 In our opinion the Minister's submissions are well made. Unless the appellant could establish by admissible evidence that he was a minor no issue concerning the Minister's responsibilities under the Guardianship Act could arise. The primary judge was clearly correct in his decision on this point and in his reasons for that decision. DECISION 30 For these reasons the appeal must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Respondent: Australian Government Solicitor