Federal Court Decision: “Late“ Tribunal Applications may be Reconsidered in Some Circumstances

by Sergio Stagliorio and Mark Northam

A decision handed down by the Full Court of the Federal Court on 18 April 2019 may have wide and welcome consequences for individuals and businesses whose merits review applications the Tribunal found to have been lodged after the statutory deadline, even if that occurred years ago.

If you are aware of any such cases, we invite you to contact solicitors Mark Northam or Sergio Stagliorio at Northam Lawyers for a free consultation. You will find below a summary of the decision and a discussion of it.

In the case of DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64, the appellant made a protection visa application. The Minister refused that application and sent the appellant a notification letter which purported to comply with s 66(2)(d)(ii) of the Migration Act 1958 by setting out the timeframe within which she could validly apply to the Tribunal for merits review.

Instead of stating the deadline for a merits review application in absolute terms (i.e. 13 March 2017), the notification letter set out the formula contained in the legislative provisions for determining that deadline, along with the parameters to be used in that formula, such as the date the person was taken to have been notified.

The appellant applied to the Tribunal for merits review, which found it had no jurisdiction because the application had been made after the statutory deadline.

The Full Court held that, by using that (complex) formula, as opposed to stating the deadline of 13 March 2017 in absolute terms, the letter did not comply with s 66(2). As result, the Court held that the Minister still had not, at law, validly notified the appellant of the refusal. The lack of valid notification meant that the merits review application had not been lodged late and, consequently, the Court declared that the Tribunal had jurisdiction to review the Minister’s decision and ordered it to do so.

With respect, although the writers of this article believe that the Minister might succeed if he appeals this decision to the High Court, that could well not change the final outcome of this case, as we discuss in the next paragraph. The reason why the Minister might succeed on appeal is that s 412(1)(b) of the Act states that a Part 7-reviewable decision “must be given to the Tribunal within the prescribed period” (emphasis added). If, at law, the Minister has not issued a notification under s 66(2), the prescribed period has not commenced yet, in which case the application lodged to the Tribunal before that period commences cannot be described as an application “given to the Tribunal within the prescribed period” (emphasis added).

Even if the Minister succeeds on appeal to the High Court, perhaps that would only change the remedy from an order for the Tribunal to determine the review application to an order for the Minister to notify the appellant of the refusal according to law. In this case, the appellant would need to make a fresh merits review application within the statutory timeframe based on the date of the new notification to be issued by the Minister.

Given that refusal letters usually do not specify the date in absolute terms, certain decisions made by the Tribunal could be reconsidered if their circumstances are not sufficiently distinguishable from those considered in this Federal Court judgement.

If you are aware of any application found by the Tribunal to have been lodged ‘late’, Northam Lawyers may be able to help you – contact us today for a free review of your AAT case.