Australian Immigration Daily News

How many times have you been told: “The deadline for filing an application for merits review to the Administrative Appeals Tribunal is absolutely fixed, rigid and inflexible! There is no way to get the deadline extended under any circumstances. The Tribunal simply does not have the power to grant an extension of the deadline, even if it were inclined to do so.”

The principle that “the filing deadline cannot be extended” is undoubtedly something that is taught in every course that Registered Migration Agents must take to be eligible for registration with the Office of the Migration Agents Registration Authority.  I even recall that this was something that was taught when I took a course sponsored by the Migration Institute of Australia, a short three-day course on “introduction to migration law for lawyers”.

So it has been an “article of faith” that the filing deadline cannot be extended, no matter what.

Something that has been regarded even by the courts as “settled law”. As immutable as the rising and setting of the Sun!!!

Until it’s suddenly not!!!!!

Because just yesterday, 19 November 2018, a decision was handed down by Justice Greenwood of the Federal Court of Australia in Queensland that held the opposite: that the filing deadline is not absolutely fixed and inflexible in every circumstance, and that since 1 July 2015, the Tribunal has had the power to extend the filing deadline. See Brown v Minister for Home Affairs (No. 2) (2018) FCA 1787.

This is a decision that literally every Registered Migration Agent and every migration lawyer in Australia needs to know about!!!!!!!!!!!!!

The legal analysis that was utilized by Justice Greenwood was somewhat intricate and complex, but I will try to lead you through it step by step.

As most readers will be aware, on 1 July 2015 the former Migration Review Tribunal and the Refugee Review Tribunal were combined with the existing Administrative Appeals Tribunal through the Tribunal’s Amalgamation Act 2015 (Cth).

Section 24Z of the Administrative Appeals Tribunal Act, which was added to the Act through the Amalgamation Act, provided that section 25 of the AAT Act would apply in relation to proceedings before the new Migration Review Division of the AAT.

And section 25(6) of the AAT Act provides that section 29 of that Act applies to proceedings before the Tribunal unless an enactment specifically excludes  section 29 from having any legal effect, or “operation”  in relation to applications for review that are made to the Tribunal.

Section 29(7) of the Administrative Appeals Act provides that the Tribunal does have power to extend the time for the making of a review application if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

And since the Migration Act does not specifically exclude the operation of section 29(7) in relation to applications for review that are made to the Tribunal from migration decisions of the Department, the Tribunal does in fact have the power to grant extensions of time for the filing of applications for merits review under the Migration Act.

In light of this decision, it is suggested that every applicant who has had an application for merits review to the AAT rejected after 1 July 2015 on the basis that the application was filed after the expiration of the filing deadline (and/or every RMA who acts for a person in such a circumstance) should seek legal advice concerning whether there is a case to be made that the AAT committed jurisdictional error.

In brief, this was the factual background of the case, which was originally heard before Judge Vasta of the Federal Circuit Court in Brisbane, Brown v Minister for Immigration and Border Protection (2018) FCCA 817 (12 March 2018):

The applicant had applied for a partner visa in 2009. That application was refused by the Department. The applicant sought merits review before the Tribunal. In 2010, the applicant notified the Department of a new residential address, but he did not provide any further updates concerning changes to his address until 2017. The Tribunal found that the applicant met the criteria for the grant of the partner visa and remitted the case back to the Department. In 2011, the Department granted the applicant a subclass 309 provisional partner visa.

Five years later, in 2016, the Department wrote to the applicant at the postal address that he had given the Department in 2010 concerning the next stage, permanent partner visa.  This correspondence was sent to the address that the applicant had given the Department in 2010, but in the meantime the applicant had changed his address. The Department’s letter concerning the next stage partner visa application was returned to the Department marked “returned to sender”; a similar letter that the Department sent to the migration agent who the applicant had engaged in 2010 was also returned to the Department, also marked “returned to sender”.

In December 2016, the Department sent another letter to the same address that the applicant had provided in 2010, which purported to give notice that the applicant’s next stage partner visa had been refused.  The applicant claimed that he did not receive the refusal letter that had been sent to his previous address.

The applicant only learned of the refusal after being informed by Centrelink that his benefits had been cut off. He immediately went to the AAT and made inquiries about what he could do. He claimed that he was told by the Tribunal that he had 5 more days in which to file an application for merits review, and that he could lodge his application by 16 January 2017. As a matter of fact, however, the time for filing an application for review had expired on 13 January 2017. So the Tribunal proceeded to rule that it did not have jurisdiction to hear the applicant’s case.

Although Judge Vasta observed in his reasons that “it would take a heart of stone not to be moved by the pleas of the applicant, his wife and child, His Honour nonetheless concluded that the Tribunal had not committed jurisdictional error by finding that it did not have power to extend the deadline for the filing of the application for merits review.  Judge Vasta further observed that he was bound to uphold the law “without fear or favour and without sympathy or prejudice”, and that he was thus constrained, on the law as he understood it, to dismiss the application for judicial review.

The appeal to the Federal Court, and Justice Greenwood’s important decision that the Tribunal does in fact have the power to extend the filing deadline for merits review applications to the AAT then followed.

Despite this decision, it should not be taken for granted that the Tribunal will now grant extensions of the filing deadline as a matter of course. It is more likely that extensions will only be granted in exceptional cases, where a compelling explanation can be provided concerning the reasons for the delay. Cautious practitioners and applicants would be well advised to continue to take every step to make sure that applications are filed on time!

Note to readers: As many of you will be aware, for the past several years I have been providing updates on important developments coming out of the courts for the Migration Alliance. I am very grateful for MA’s support and encouragement of this service. I wish to make it known that beginning early next week, my updates will be moving to a new platform, which will be known as “The Migration Messenger”.  I will be providing further information through the Migration Alliance Website about how to subscribe to those news articles.

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