Australian Immigration Daily News

The deadline for filing an application for merits review has long been the bane of applicants’, and migration agents’ existence, hasn’t it?

It has long been considered “settled law” that the filing deadline is absolutely rigid and inflexible, and cannot be extended no matter how compelling the circumstances may be, or however good the explanation may be for the applicant’s failure to file the application for merits review “on time”.

That is why there was at least temporary cause for excitement, optimism and possibility when a decision was handed down in November 2018 by Justice Greenwood of the Federal Court, in the case of Brown v Minister for Home Affairs (No. 2) (2018) FCA 1787 that the filing deadline was not, in fact, inflexible and that it could indeed be extended. 

My article about the decision in Brownappeared on the Migration Alliance Website, and can be found by clicking on this link.

However, whatever optimism and enthusiasm that may have been created by the Brown decision was extinguished by a decision that was handed down by the Full Court just about a month later, in December 2018, in Beni v Minister for Immigration and Border Protection (2018) FCAFC 228.

In that case, the Full Court held that Brown was incorrectly decided, and concluded that the filing deadline is indeed rigid and inflexible.

So after Beni, we were right back where we started.

A similar burst of excitement about the possibility of overcoming the filing deadline was also created by a judgment of the Full Court in the case of  DFQ17 v Minister for Immigration (2019) FCAFC 64 (18 April 2019): in that case, the Full Court held that where a Department’s refusal letter does not “clearly convey” the time period in which an application for merits review must be filed, that the time period for seeking merits review does not even begin to run..

Again, an article that I posted on the MA Website about DFQ17 can be accessed by clicking on this link.

The DFQ17 decision seemed to open the possibility that refusal letters that did not expressly specify the actual date on which an application had to be filed with the Tribunal could be said to be “defective”, and  seemed to create a prospect that many, many decisions of the Tribunal holding that an application was “untimely” could be challenged.

Unfortunately, there has, very recently, been another “bucket of cold water” splashed on the possibilities that seemed to have been created by DFQ17.

The reason why is that on 12 July 2019, just a few days ago, that a decision was handed down by Justice Nicholas of the Federal Court to the effect that a refusal letter that simply states that an applicant has “21 calendar days” from the date that the applicant is taken to have received notification of the refusal does clearly convey the date on which an application for merits review must be filed. 

The case where it was so held was Ali v Minister for Home Affairs (2019) FCA 1102.

So here was a case where the refusal letter did not specify the actual date by which an application for merits review had to be filed, and yet it was held that this letter communicated the time period for filing with a sufficient degree of clarity.

So the very important lesson to be drawn from the decision in Ali is that it is necessary to proceed with caution in challenging decisions of the Tribunal that hold that the Tribunal does not have jurisdiction because the application for merits review was filed “late”: it will apparently not be enough to show simply that the refusal letter did not specify the actual date when the application for review had to be filed with the Tribunal.

Rather, in the wake of Ali it appears that it will be necessary to “drill down” into refusal letters on a more “granular” level, and to demonstrate that in the particular case, the period for filing of an application for merits review was stated in a confusing or unclear manner.

If you find articles like this to be useful, continue to stay tuned to the Migration Alliance Website, and also check out The Migration Messenger.