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OUT OF TIME, OUT OF OPTIONS AT THE AAT? Not Necessarily!
The recent decision in the case of Brown V Minister for Home Affairs being an appeal from a decision at the FCC is of interest to the profession.
The relevant citation for the Appeal decision is Brown V Minister for Home Affairs [2018] FCA 1643.
The hyperlink to the reported decision is here: ( http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2018/1643.html?context=1;query=Brown%20V%20Minister%20for%20Home%20Affairs%20;mask_path= )
The ratio decidendi of the case can be found at paragraph 61 of that decision:
His Honour Green Wood J said: " There is no good reason to believe that these general provisions conferring a power on the AAT to extend time do not apply in relation to applications susceptible of review under section 347(10(b)(i) of the Migration Act in respect of a Part 5-reviewable decision".
That being the case how can you apply this principle to your clients and their cases?
Scenario 1 Your client has just been refused jurisidiction by the AAT less than 35 days ago
because they are out of time
Scenario 2. Your client is already at the FCC on a no jurisidiction point.
Scenario 3. Your client is still onshore and more than 35 days ago the AAT determined their
case as being out of time
I am happy to give any RMA or their client specific advice about their legal options for FREE all you need to do is to send me an email: This email address is being protected from spambots. You need JavaScript enabled to view it. .
Any question, any time!
Comments
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Thursday, 29 November 2018Yet again we see that the Migration Alliance is just a front for Levingston to generate referral work.
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Thursday, 29 November 2018Unpaid referral work. Just terrible.
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Thursday, 29 November 2018
Unpaid?
Sorry was someone being paid?
Yes it is obvious I am completely selfish and MA is all about me all the time and is simply a marketing platform for CLA (me)
Thank you MA!
BTW...Michael Arch I completely agree, I would concur but given that neither of us are Judges so I can't do that. -
Sunday, 02 December 2018
I have a client on a sc820 and who had submitted an application for stage 2 sc801 visa. Her relationship with her partner became strenuous and she was subject to abuse by her dominating partner. It was stressful and she returned to her home state to help her recover and get away from her abusive partner. The partner notified Immigration and withdraw his support for her application. The department cancelled her application and she was left without a valid visa. she wanted to appeal the cancellation on grounds of FV but in order to do so she needed to be in Australia to lodge her appeal. We applied for a subclass 651 vsa which was subsequently refused by the department, The department delegate stated that she did not have to be in Australia to pursue her application. This was false advice She lodged her application offshore and explained why she could not be onshore and provided a copy of the decision record. The AAT refused to accept her application as she was not on sure at the time. I think the only option is for her to apply to the FCA. Clearly the department had erred in ts decision not to grant a subclass 651 visa.
I have not made any assessment as to the validity or merits of her FV claim. (It is outside me area of expertise)
What is the chances of a successful FCA application to allow her Application to be considered by the AAT or would she need t run the FV case as well? I would think this could be decided on the papers and submission.
Christopher I have sent you some details. -
Monday, 03 December 2018
Oh..................and by the way, if your out of time application was refused on a no jurisdiction point you need to be aware of section 477 of the Act which limits the extension of time necessary in these cases to 35 days of the AAT "no jurisdiction" decision. if it is longer that 35 days you need to file in the High Court where there is no time limit.
If you need pleadings let me know.......I am happy to give you a working draft for the FCC. -
Monday, 03 December 2018
Anthony,
The issue that arises in your case is whether the principles in Brown are going to be of assistance to your lady. It is a no jurisdiction point and may be susceptible to review. I always thought that section 338 was way too narrow but as you know the Public Service does love complexity. These restrictions are way too complex and really beyond most of the clients. Why shouldn't an applicant for a visa have a right of review if they happen to be offshore when DOHA makes a decision. Perhaps DOHA should check international movement records BEFORE they make a decision particularly in a case of family violence when the Sponsor has withdrawn their support and the NJ letter is likely to have been sent to the Applicant at their last known address which is the same address where the perpetrator is living. It makes no sense! -
Monday, 03 December 2018
I think they did check the international movement records. the system flags their status. So they would have known she was offshore at the time they made the decision.. my client did receive a NJ letter. I was only engaged to he apply for a sc651 visa to allowed to travel back to Australia and apply for a review. We highlighted the fact that she needed to be in Australia to apply for a review. The delegate refused her visitor visa application stating that she did not have to be in Australia. i wonder if we could write to the department and ask that they set aside the decision to cancel the visa to allow her to return and submit an application for a review.? Not sure what the procedure is in this case.
Immigration blog
I would add a fourth scenario to those listed by Christopher, as follows:
Your client has missed the filing deadline to seek merits review in the AAT, and has received a letter from the AAT seeking comment as to whether it has jurisdiction to hear the application.
As I have suggested in my earlier post about the Brown decision (19 November) applicants who have had their applications for review in the AAT dismissed because the AAT concluded that it had no power to extend the filing deadline should seek legal advice concerning whether they have a remedy in the Federal Circuit Court.
As stated in my post, its my view that it is likely that the AAT and the courts will find that any power to extend the filing deadline should be exercised only in rare and unusual circumstances; of course it remains to be seen how that will unfold. I suspect that extensions will be available mainly in circumstances where there has been some breakdown in the process for example where the Department or the AAT has given incorrect guidance/information concerning the filing deadline, or some extraordinary mishap as befallen the applicant which prevented timely filing.
My suggestion is that the cautious approach is to file on time whenever possible as there will not be any certainty in any given case as to whether an extension will be granted.