Australian Immigration Daily News

That is a really good question, isn't it!!

Why not, indeed!

After all, if you have been trying to follow developments in the law concerning the AAT filing deadline over the past year, you might be suffering from a bad case of ""whiplash": it has been harder than watching a fast-paced tennis match: back and forth, back and forth!

If it's all confusing for the courts, migration lawyers and RMAs, how bewildering must it be for migrants trying ot navigate the system!

First, there was a decision by Justice Greenwood of the Federal Court in Brown v Minister v Home Affairs (No. 2) in November 2018 which very surprisingly held, contrary to what was long considered settled law, that the Tribunal does have power to extend the filing deadline.

Then, about a month later, in December 2018, the Full Court held, in Beni v Minister for Immigration and Border Protection that the filing deadline cannot be extended after all (therefore holding, at least implicitly, that Brown (No. 2) was incorrectly decided.

Next, in April of this year, the Full Court handed down another decision, DFQ17  v Minister for Immigration, where it was held that when the notification letter that is sent to a visa applicant notifying of the refusal of a visa application does not “clearly state”  the time period within which an application for review in the Tribunal must be filed, the time period for filing the application does not begin to run – in other words, in such a circumstance, an application for review could be accepted even if filed late.

In DFQ17, the Full Court had found that the notification of the visa refusal did not clearly state the time period by which an application for review had to be filed, but was instead, “piecemeal, entirely obscure and essentially incomprehensible”.   The notification in DFQ17 had been sent to the applicant by post, not as is usually the case by email; it included a reference to the 7  day period on which the applicant was taken to have received the notification by post on one page, and the 28 day period within which the application had to be filed with the Tribunal on another page, and the 7 day period for calculating the date of receipt of the notification letter had to be calculated by excluding weekends and public holidays, while calculating the 28 day period for filing the application did not require excluding weekends and public holidays.

After DFQ17, it seemed that any notification letter that did not actually state the date by which an application for review to the Tribunal had to be filed might be vulnerable to challenge.

However, in July 2019, Justice Nicholas of the Federal Court handed down a decision in Ali v Minister for Home Affairs which held that where the notification of the refusal is sent by email, and the notification letter does no more than state that the application for review must be filed in 21 days, that is sufficient to meet the requirement for clearly stating the period within which an application for review must be filed.

And just last week, in FJR18 v Minister for Home Affairs and Anor, Judge Driver of the Federal Circuit Court held that even though the notification letter in that case shared some of the deficiencies with the notification letter that had been sent in DFQ17, a notification letter that was sent by email and specified a period of 28 days for the filing of an application to the Tribunal for review was sufficiently clear.

Accordingly, Judge Driver held in FJR18 that an application for review that was filed after the expiration of the 28 day period referred to in the notification letter could not be heard by the Tribunal.

The decision in FJR18 includes some very interesting observations from Judge Driver, with which many of us might agree, concerning the filing deadline:

• Reasonable minds might differ concerning when a notification letter does not state the deadline for filing an application for merits review to the Tribunal;
• This might lead to inconsistent decisions in the courts;
• The only sure way to avoid inconsistent decisions would be for the notification letter to specify the actual date by which an application must be filed with the Tribunal, or, alternatively, for notification letters to clearly and simply explain how the time period for filing with the Tribunal is to be calculated for example, for the notification letters to say: “The timeframe commences today and ends at the end of 28 days”
• Judge Driver noted that he has been calling for legislative reform to that the Tribunal will have the power to extend the filing deadline so that when injustice results from applicants being confused  about the period within which an application for review must be filed the injustice can be remedied, but that unfortunately no action of that call for reform has not yet occurred.

One can only assume that if Judge Driver’s calls for reform have not prompted a response by now, it is unlikely to happen, and the Tribunal will remain without power to extend the deadline for filing an application for review.

That means that applicants and their advisors will have to continue to be extremely careful to make sure that they file within the allowable timeframe.

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