Normally, applications to the AAT must be submitted within a prescribed timeframe. Failure to do so ordinarily relieves the applicant of their right to seek merits review of the decision of the Department.
However, as of recently, the Full Court of the Federal Court has handed down a decision in the case of DFQ17 v Minister for Immigration and Border Protection that allows individuals and businesses whose merits review applications had been lodged to the AAT after the statutory deadline to be reconsidered in some circumstances.
Background of the case
- In DFQ17, the appellant made a protection visa application which was subsequently refused by the Minister.
- In the refusal letter, the appellant was provided with a right to apply for merits review including the timeframe within which she could validly apply to the AAT for the review.
- The refusal letter did not specifically set out the deadline in absolute terms (i.e. 13 March 2017), instead it provided a formula using legislative provisions for determining that deadline, such as the date the person was taken to have been notified.
- The appellant applied to the AAT outside the prescribed timeframe, and consequently the Tribunal found that it had no jurisdiction because the application was made after the deadline.
- The appealed the AAT’s decision to the Full Court of the Federal Court.
Under what circumstances can the “late” AAT applications be reconsidered?
- The Full Court held that, by using that (complex) formula, as opposed to stating the deadline of 13 March 2017 in absolute terms, the letter did not comply with s 66(2) of the Migration Act 1958.
s 66(2) Notification of decision:
(2) Notification of a decision to refuse an application for a visa must:
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 – state:
(ii) the time in which the application for review may be made.
- The Court held that the Minister still had not, at law, validly notified the appellant of the refusal.
- Therefore, the notification was deemed not fully valid which consequently also meant that the merits review application had not been lodged late.
- As such, the Court held that the Tribunal had jurisdiction to review the Minister’s decision and ordered it to do so.
This decision opens gateway to possibly hundreds of Tribunal decisions (in which the Tribunal dismissed “late” applications for merits review) to be affected by jurisdictional error and may well also be overturned in the Federal courts.
Any challenges ahead in maintaining the High Court’s decision?
If the Minister wishes to appeal the decision, he may bring the appeal on the grounds covering s 412(1)(b) of the Act which states that a “Part 7-reviewable decision must be given to the Tribunal within the prescribed period.”
However, if the Minister has not issued a valid notification under s 66(2), the prescribed period will be taken to have not commenced yet, in which case the application submitted to the AAT before the period commences cannot be considered to have been provided to the Tribunal within the prescribed period.
As such, the decision of the High Court should withstand, and even if the Minister is to succeed on appeal, it would only change the remedy order that the Tribunal would use i.e. to order the Minister to validly notify the appellant of the refusal decision. In this instance, the appellant would need to make a fresh appeal application to the AAT within the prescribed timeframe for which the date which would be stated on the new notification letter from the Minister.
- For the time being, any decision by the AAT that an application for review has been dismissed as a result of “late” application is likely to be affected by jurisdictional error if the refusal letter does not clearly state the time period within which an application for review must be filed.
- The dismissal letter from the AAT does not have to be recent, it can be challenged even if it had been provided years ago.
If you had previously lodged an application to the AAT which was dismissed by the Tribunal on the basis that it was supposedly “out of time” or “late”, it is worthwhile to seek immigration legal advice as to whether your case would have a reasonable prospect of success.
At Migration Centre of Australia, we are well-trained to handle highly complex matters. Book one of our agents for professional advice by calling 02 4626 1002 or email us to book in a time at email@example.com. We also speak fluent Hindi, Nepalese, Punjabi, Turkish, Tamil, Portuguese and Marathi. If one of these isn’t your language, we can also help you arrange an interpreter.