I have lost count of how many times I have stressed to clients that it is important that their current address is notified to the Department. Sometimes that is not as easy as it sounds. It is also very difficult to undo adverse decisions which are made because the current address held by the Department is not actually current.. The decision in DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 75 illustrates these difficulties.
The facts of that case
- The protection visa application was refused in January 2020;
- The Applicant had been arrested on 23 October 2020 and remained in custody;
- In October 2021, the Tribunal sent a hearing invitation to the applicant for a hearing scheduled for 1 November 2021;
- The Applicant was unaware of the hearing and did not attend;
- The Tribunal dismissed the application;
- The Applicant (unsurprisingly) did not apply for reinstatement and the Tribunal confirmed its decision on 17 November 2021;
- It was accepted that prisoners do not have general access to the internet.
Under section 418(3) Migration Act the Secretary of the Department has to provide anything “relevant to the review of the decision” to the Tribunal. The Department was in possession of a Corrective Services spreadsheet dated 2 November 2020 which notified it of the Applicant’s arrest. This spreadsheet was not passed onto the Tribunal (although the Department updated it’s own records).
The grounds for review were effectively that: (a) there had been a breach of the duty in s418; and (b) the Tribunal could have made enquiry to ascertain the address.
Both arguments failed.
In relation to the breach of duty argument there are a number of cases which are authority for the proposition that the Secretary’s failure to perform the duty doesn’t invalidate the decision of the Tribunal. The Full Court drew an analogy with the “migration agent fraud cases” and found that unless the breach of duty “stutifies” the exercise of the Tribunal’s power then it will not be enough.
Similarly with the failure to make enquiry about a critical fact, it was accepted that: “Asking the Department what it knew was clearly a reasonable (indeed, desirable) step to take” but, “it does not follow that the Tribunal fell into error by not taking that step. The same would be true of most if not all cases where a review applicant does not respond to a hearing invitation and does not attend the hearing.”
The take home message from this case is that Tribunal notices are sent to the last address provided by the review applicant. It is important to keep address details up to date!
Creative commons acknowledgment for the photograph.
