WACB v Minister for Immigration & Multicultural Affairs[2002] FCAFC 246

Federal Court of Australia (Full Court)|2002-08-21|Before: Stone JJ

THE COURT: 1 This is an appeal from the decision of a judge of this Court given on 26 October 2001 dismissing an application to review a decision of the Refugee Review Tribunal ("Tribunal") as well as two motions filed in the proceeding by the appellant on 31 August 2001 and 13 September 2001. The Tribunal had affirmed a decision of a delegate of the respondent ("Minister") not to grant the appellant a protection visa.

Background 2 The appellant, a young male claiming to be a national of Afghanistan, arrived in Australia without authority on 17 December 2000. Both before the primary judge, and on the appeal, it was not in contention that at all relevant times the appellant was a minor, apparently having been born in 1985. As such, and pursuant to the provisions of the Immigration (Guardianship of Children) Act 1946 (Cth) ("Guardianship Act"), the Minister is the appellant's statutory guardian. 3 The appellant's application for a protection visa, which had been prepared by a migration agent, was refused by the Minister's delegate on 25 January 2001. The Tribunal affirmed the decision not to grant the appellant a protection visa on 15 March 2001. An application to review the Tribunal's decision was filed in this Court on 3 May 2001. By a notice of objection to competency dated 21 May 2001, the Minister objected to the jurisdiction of the Court to try the application for review of the Tribunal's decision on the grounds that the application for review was not lodged within 28 days of the appellant being notified of the Tribunal's decision, as required under s 478(1)(b) of the Migration Act 1958 (Cth) ("the Act").

The application for judicial review 4 The issue of whether the appellant was effectively notified of the Tribunal's decision for the purposes of the Act was the subject of argument before the primary judge and on the appeal. The appellant was in detention at the relevant times. The evidence before the primary judge was that an officer from the Minister's department, Mr Gregory Wallis, gave the appellant a copy of the Tribunal's decision on 16 March 2001. Mr Wallis gave evidence that, in accordance with his usual practice, he made a note of the date he handed the Tribunal decision to the appellant. This note was annexed to his affidavit. Mr Wallis was confident that he advised the appellant that the Tribunal had rejected his application and that he had 28 days in which to lodge an application to the Federal Court for a review of that decision. According to Mr Wallis an on-site interpreter translated what he said to the appellant when he handed him the copy of the Tribunal's decision. 5 The appellant's evidence was that Mr Wallis, an Afghan interpreter and two other people were present when Mr Wallis told him of the Tribunal's decision. The appellant said that he became very upset and began crying. He denied that Mr Wallis gave him any papers. The appellant stated that they were given to one of the people present, a Ms El Ham, and that Mr Wallis did not tell the appellant anything about applying to the Federal Court for a review of the decision. He said that other detainees told him that he could apply. The appellant also said that Ms El Ham did not give him the copy of the Tribunal's decision on that day. He only obtained it some weeks later when he went to ask for it. The Tribunal's decision had never been translated for the appellant by anyone from the Minister's department. 6 Having considered the conflicting evidence the primary judge held that it was more likely that Mr Wallis advised the appellant of both the Tribunal's decision and the 28 day time limit in which he could apply for a review of the decision. His Honour observed that it was "quite possible that the [appellant] was so distressed at hearing that he was not to receive a visa, that he did not register the other things he was told." The primary judge held that, for the purposes of s 478 of the Act, time runs from the notification of the decision and, on the authority of Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 ("Long") and Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995, that notification of the Tribunal's decision may be oral or written. His Honour also considered a number of submissions made on behalf of the appellant seeking to challenge the validity of the appellant's application for a protection visa, the validity of the Tribunal's decision and of its notification, on various grounds related to the appellant being a minor. 7 The primary judge rejected these submissions. His Honour stated that the question of whether an unaccompanied minor can make a valid application is "one of factual rather than legal capacity". In this case the appellant had been properly assisted and there was "nothing to suggest that he did not understand the nature of the process which he was undertaking." His Honour then considered whether the appellant being a minor rendered the notification of the Tribunal's decision ineffective so that time did not start to run under s 478(1)(b) of the Act. His Honour observed: "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." 8 His Honour was satisfied that the appellant was told of the Tribunal decision and understood its import. This was evidenced by the fact that the appellant became distressed when he heard of the Tribunal's decision. His Honour was also satisfied the appellant was told that he had 28 days in which to lodge an application for review. Further, his Honour did not think the status of the Minister under the Guardianship Act affected "the conditions under which notification may be given and under which time begins to run for the purposes of an application to this Court." 9 His Honour concluded that notification to the appellant having been effected on 16 March 2001, the application for review was out of time and the Minister's notice of objection to competency must succeed.

GROUNDS OF APPEAL 10 On the hearing of this appeal, counsel for the appellant made it clear that the only ground on which the appellant wished to rely was that the primary judge erred when he held that the appellant was notified of the Tribunal's decision for the purposes of s 478(1)(b) when he was given oral advice of the Tribunal decision. It was submitted that the appellant was not notified of the Tribunal's decision within the meaning of s 478(1)(b) and for that reason the 28 day time period provided in s 478(1)(b) had not commenced. As such it could not be said that the appellant's application for a review of the Tribunal's decision was out of time. All other grounds of appeal were expressly abandoned by counsel for the appellant.

Notification of decision 11 The appellant challenged the authority of the decision in Long on which the primary judge relied. It was submitted that the decision in Long 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. 12 The same submission was put in WACA v Minister for Immigration & Multicultural Affairs [2002] FCAFC 163 ("WACA") to a Full Court constituted identically with this Court. The facts in WACA were, in all relevant respects, the same as in this case except that the appellant in WACA was not able to substantiate his claim to be a minor. The appeal in WACA was heard on the same day as this appeal and judgment handed down on 31 May 2002. Because the present appellant is a minor, the decision in this case was reserved pending the decision of the Full Court in Odhiambo v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194 ("Odhiambo") which was thought to be imminent and which also involved an appellant who had not attained the age of majority. In Odhiambo, which is discussed below at [20], the Full Court was concerned with the implication of the appellants in that case being minors for the validity of the Tribunal's hearing; there was no question concerning the effectiveness of notification of the Tribunal's decision to a minor. 13 The time limit of 28 days for lodging an application for judicial review imposed by s 478 (the relevant section for the application in this case) is strict. This is indicated by s 478(2) which provides that the Federal Court must not make any order that would have the effect of allowing an application to be lodged outside this period. In WACA we set out the statutory requirements for notification of the Tribunal's decision as follows: "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.'"

14 In WACA we summarised the submission for the appellant thus: "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 … 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)."

15 In WACA our response to this submission, which is equally applicable here, was: "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). 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. 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.'"

16 In Long,Jenkinson J's response to this argument, at 167, was that: "Those considerations may perhaps be allowed an influence in determining the proper construction of the word 'notified', so as to require, for example, that the communication be intelligible to the person adversely affected by the decision. But they are not in my opinion considerations which justify disregard of the distinction which the legislature has consistently drawn in the [Act] between 'decision' and 'reasons for decision'."

17 Beazley J concurred with Jenkinson J on this point stating, at 178, that: "the time limit imposed by s 478(1) runs from the time that an applicant is notified of the decision of which review is sought. It does not depend upon the time an applicant is notified of the reasons for decision, although it might be expected, in most cases, that that would occur at the same time." 18 We agree with these comments and adopt them in the present appeal.

The status of the appellant as a non-citizen child 19 The second aspect of the appellant's challenge to the effectiveness of the notification of the Tribunal's decision was based on the fact that, at all relevant times, the appellant was a minor. It was common ground that when the appellant entered Australia he acquired the status of a non-citizen child as that term is defined in s 4 of the Guardianship Act. Section 6 of the Guardianship Act provides: "The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as the natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens." 20 The Guardianship Act was considered by the Full Court in Odhiambo and by North J in X v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 524; [1999] FCA 995. In Odhiambo the Court accepted that s 6 of the Guardianship Act confers on the Minister all the usual incidents of guardianship. These incidents extend to providing the basic needs of the child, which may include legal advice and assistance. The Court observed that there might be some conflict between the Minister's role as guardian of unaccompanied asylum-seeker children and his role as the person administering the Act. Nevertheless, the Court pointed out that the appeal with which it was concerned required it to direct its attention to the conduct and the decision of the Tribunal, not the position or conduct of the Minister. 21 In considering if the Tribunal had erred in proceeding with the hearing in the absence of a guardian actively representing the appellants, the Court in Odhiambo concentrated on the substance of what had occurred at the hearing. The Court noted that the appellants were not children or "demonstrably unable to have proper regard for their own best interests" and, in the circumstances, was not able to detect any reason to interfere with the Tribunal's conduct of the proceeding. It is not relevant here to go into the detail of the circumstances in Odhiambo but it is relevant that the Court held that the "bare fact" that the appellants were minors was not sufficient to justify a finding that the Tribunal was in error in allowing the hearing to proceed in the absence of a guardian. 22 Although Odhiambo was concerned with the validity of the hearing conducted by the Tribunal rather than with the notification issue that is raised before us, the approach of the Full Court in that case is consistent with the approach of the primary judge here, namely that the issue is one of substance. As previously described (see [7] above) the primary judge rejected the submission that the bare fact that the appellant is a minor affected the validity of the notification. His Honour concluded that the appellant had understood what was said to him and that therefore the decision, as distinct from the reasons for the decision, was notified to him in accordance with the Act, with the consequence that time began to run under s 478(1)(b). We agree with that conclusion. 23 The primary judge was correct in upholding the Minister's notice of objection to competency and therefore his orders dismissing the application and the two notices of motion must stand. The appeal is dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 430, 430A, 430B, 430C, 430D, 478(1)(b), 478(2)

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