Federal Court. The Migration Act 1958 (Cth) pointed to the deadline for seeking merits review falling on a Saturday, although the effect of s 36(2) of the Acts Interpretation Act 1901 (Cth) (AIA) was to extend it until the following Monday. By being silent on the effect of s 36(2) of the AIA, did the letter notifying of a non-revocation decision fail to state the deadline, with the result that the Tribunal application lodged years later was not late?
In August 2019, a delegate gave the Applicant a letter notifying him of a refusal under s 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of his visa.
Section 501G(1)(f)(ii) required the Minister to give a notice which "states the time in which the application for review may be made".
Section 500(6B) provided:
(6B) If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
The letter stated: "you must lodge your application for review within nine (9) days after the day on which you are taken to be notified of the decision".
That 9-day period fell on a Saturday. As such, the effect of s 36(2) of the Acts Interpretation Act 1901 (Cth) was that the review application could be made until the following Monday.
In November 2022, the Applicant applied to the Tribunal for review of the non-revocation decision.
The Federal Court answered that question as follows: