Australian Immigration Daily News

As the saying goes, "it was too good to last" or "too good to be true".

Or as Joni Mitchell sang "they paved Paradise and put up a parking lot".

Just recently, we had posted news of the decision of Justice Greenwood in Brown v Minister for Home Affairs (No. 2) where His Honour held that the 2015 legislation that amalgamated the Migration Review and Refugee Review Tribunals with the pre-existing Administrative Appeals Tribunal had given the AAT power to extend the deadline for the filing of applications for merits review to the Tribunal.

That decision broke with a very long line of cases which had held that the Tribunal has no power under any circumstance to extend the filing deadline.  

And due to those previous cases, it had long been regarded as "settled wisdom" that the Triual simply could not extend the filing deadline for any reason, no matter what.

Well, the brief ray of sunshine that was provided by the Brown decision has o given way to a thick blanket of clouds.

In a decision handed down yesterday, 14 December, the Full Court of the Federal Court held that Brown was wrongly decided and should not be followed. See Beni v Minister for Immigration and Border Protection (2018) FCAFC 228.

The Court's reasoning was complex, and turned on a close analysis of the legislation that brought about the amalgamation of the MRT and the RRT with the rest of the AAT.

We may post a follow up to this article discussing the Full Court's reasons.

The important thing to know is that we are right back where we started: under current law,  the Tribunal does not have power to extend the filing deadline for an application for merits review.

Which means that if you or your client miss the filing deadline, even as the result of accident, mishap or other seemingly justifiable reasons, the client is simply out of luck, and the AAT simply will not be able to review the Department's decision.

So the old lesson, that one most be extraordinarily diligent to comply with the filing deadline, is one that must continue to be kept in mind!