Well, I thought this was going to be a whole lot easier than it has turned out to be!
On 30 November I was scrolling through the cases on Austlii and came across a case, Singh v Minister for Immigration & Anor (2018) FCCA 3427 (27 November 2018) where it seemed that a judge of the Federal Circuit Court had followed the recent decision of Justice Greenwood in Brown v Minister for Immigration and Border Protection where it was held that the AAT does in fact have discretion to hear an application for merits review even if it is filed after the statutory filing deadline.
While that is indeed essentially the holding in Singh, and it does now seem clear that the courts will recognise that the AAT filing deadline can be extender under certain, very likely very limited circumstances, the procedural history of the case was as convoluted as it gets and had many twists and turns.
In fact, you would have trouble making the background of the case up, even if you tried!
If you’re ready fr it, here it is:
The applicant in this case is a citizen of India.
He originally arrived in Australia in June of 2008 as the holder of a student visa.
That visa expired on 15 December 2010; one day earlier, on 14 December 2010, the applicant applied for a Temporary Graduate (subclass 485) visa.
That application was refused by the Department on the basis that it contained information falsely claiming that the applicant had a successful skills assessment through Trades Recognition Australia, when in fact the TRA had no record of ever having provided the applicant with a skills assessment.
In January 2013, the applicant married an Australian permanent resident, and, on the same day as the marriage, he filed an application for a partner visa.
The Department then proceeded, in November 2014, to refuse the partner visa application on the basis that the applicant did not satisfy the criteria of Schedule 3 and that there were no compelling reasons not to apply the Schedule 3 criteria.
Ready? It gets even wackier than this!
In December 2014, the Department wrote to the applicant to inform him that the original refusal of the subclass 485 visa had not been properly notified, and that it was thus re-notifying the applicant.
I May 2015, the Department notified the applicant that the original decision to refuse the partner visa application had been affected by jurisdictional error. How often have you ever heard of the Department confessing that it was guilty of jurisdictional error in determining a visa application – how about “never”?
Then in November 2015, the Department sent a further notice to the applicant notifying him that the partner visa application had been refused again.
This notice was sent to the applicant’s migration agent who had previously notified the Department that he had ceased acting for the applicant.
The notice of the refusal of the partner application was also sent by post to the applicant at his last known address, and that notice was ultimately returned to the Department as unclaimed mail.
It appears that what had happened was that the applicant had been taken into custody in relation to a criminal charge; and while the Department sent notice to the applicant of the refusal of his subclass 485 visa application to the prison where he was held, it did not send notice of the refusal of the partner visa to the prison (a classic case of the left hand of the Department not knowing what the right hand was doing!).
Even though the applicant’s former migration agent had written to the Department in November 2015 that the Department would need to notify the applicant directly of the refusal of his partner visa application, the Department only sent “courtesy notifications” to the applicant to the applicant’s last known address in December 2015 and October 2016, it was not until later in October 2016 that the applicant’s spouse lodged an application with the Tribunal for review of the refusal of the partner visa application.
The Tribunal then decided that it had no jurisdiction to hear the application for merits review of the refusal of the partner visa application, and a judicial review application to the Federal Circuit Court then followed.
What a saga!
Judge Kelly of the FCC concluded that the Tribunal’s dismissal of the application for merits review may have been affected by jurisdictional error, because the Tribunal had not treated the untimely application for merits review to the Tribunal as a “constructive” application for an extension of the filing deadline.
So what does this tangled, somewhat crazy case teach us?
1. That it is very likely that the courts will follow Justice Greenwood’s decision in Brown that the Tribunal does, in proper circumstances, have power to extend the statutory filing deadline for an application for merits review; and
2. In cases where there appears to be substantial doubt about whether the applicant was properly notified of a decision to refuse a visa, it is likely that the courts will closely examine the factual background, and if the questions about whether the applicant was properly notified cannot be definitively resolved or where it is clear that the refusal was not properly notified, then it is likely that the courts will find that the AAT should exercise its powers to extend the deadline for the filing of an application for merits review.
We will have to await for further decisions to see exactly where the contours of the Tribunal’s power to extend the deadline lie!
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