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Editors --- "Notification of Decision - Rejection of Protection Visa Application - Case Note" [2006] AdminRw 10; (2006) 57 Admin Review 77

Notification of decision—rejection of protection visa application

The High Court examined the question of what constitutes a notification of decision in WACB v Minister for Immigration and Multicultural and Indigenous Affairs.[1]

On 17 December 2000 the appellant arrived in Australia by boat and was placed in immigration detention because he was an unlawful non-citizen within the meaning of the Migration Act 1958 (Cth). He was also a minor who could not write or read in either English or his native language.

On 15 March 2001 the Refugee Review Tribunal affirmed the decision of the Minister’s delegate to deny the appellant’s application for a protection visa. On 16 March 2001 a facsimile, written in English, was sent to the detention centre, outlining the reasons for the Tribunal’s decision. There was disputed evidence as to what occurred during a meeting held on the same day between Mr Wallis, manager of the detention centre, the appellant, and Ms Alamar, a translator working for the detention centre. Through the interpreter, Mr Wallis informed the appellant that his application had been rejected. The appellant became upset and started to cry. Ms Alamar then explained to the appellant that his application was denied because he was unable to prove to the Tribunal that he was an Afghani citizen. According to the appellant, the reasons for the decision were given to Ms Alamar, and not him, and he did not see the papers until several weeks later, when he asked for them. Although the High Court proceeded on the basis that this claim was correct, the matter was unresolved by the primary judge.

Section 478(1)(b) of the Migration Act required that an application for review ‘be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision’. Because the appellant filed his application on 3 May 2001, the date of notification was crucial to the success of his claim. Division 5 of Part 7 of the Act created a ‘code’ governing ‘the making, handing down and notification of the decisions’ of the Refugee Review Tribunal. In particular, s 430(1) required the Tribunal to prepare a written statement setting out the reasons for its decision, and ss 430B–430D provided five methods by which the applicant may be notified, depending on his or her circumstances. If an applicant was in detention, as in the appellant’s case, s 430D(2) required the Tribunal to give the applicant and the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs a copy of the written statement within 14 days of the decision.

A majority of the Court (Gleeson CJ, McHugh, Gummow and Heydon JJ) concluded as follows:

When regard is had to the legislative history of the notification provisions, their subsequent amendment, the operation and function of the code, and the purpose of s 478, it will be apparent that what is required to constitute notification of the decision under s 478(1)(b) is a fulfilment of the code. This requires, in a case such as the present where a written rather than oral decision was given by the RRT, the giving of the written statement provided for in s 430(1).[2]

Notification of the decision—and therefore the start of the 28-day appeal period—‘did not occur until the written statement was given to the appellant’.[3]

Additionally, the majority stated that the word ‘give’ required ‘that the written statement be physically given to the applicant’ and that ‘[i]t will not be enough to communicate to the applicant orally that the document has arrived, or to communicate the gist of the document, or even to read the document to the applicant’.[4] It was, however, held that the document need not be translated: ‘The Act does not distinguish between notification given to a person in the position of the appellant and any other visa applicant. Nor does it distinguish between applicants with differing levels of education or literacy’.[5]

In dissent, Kirby J expressed ‘much sympathy for the appellant’s predicament … If I could properly find in his favour, I would’.[6] But his Honour stressed, ‘It is not part of this Court’s function to adopt a strained interpretation in order to cure or avoid the apparent injustice of the particular case’.[7] Instead of adopting the majority’s interpretation of the Act, which he believed was ‘an artificial and contra-textual interpretation’,[8] Kirby J favoured the Full Court of the Federal Court’s distinction between notification of the decision and provision of the written statements of the decision. Since ‘[s]eparate provision is made for the “written statement”’,[9] the Act merely required the applicant be notified of the outcome of the decision. According to Kirby J, because the appellant was clearly notified of the outcome on 16 March 2001, the time for the 28-day limit started then, not when the appellant was given the reasons for the decision.

[1] [2004] HCA 50.

[2] Ibid [15].

[3] Ibid [29].

[4] Ibid [37].

[5] Ibid [43].

[6] Ibid [89].

[7] Ibid.

[8] Ibid [92].

[9] Ibid [90].

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