Federal Circuit and Family Court. The AAT's reasons copied many passages from the reasons of the very decision under review. Did the AAT fail to turn its own independent mind to the consideration of the case? Did the lack of disclosure of its intended reliance on those passages amount to a denial of procedural fairness?
The AAT reviewed a student visa cancellation. The question to the AAT was whether the discretion should be exercised to cancel the visa.
On 30 March 2020, the AAT affirmed the delegate's decision. The AAT's reasons copied many passages from the delegate's reasons, including findings, without any attribution or acknowledgment.
On 2 April 2020, the AAT notified the Applicant of its decision, being 3 days after the date of its decision.
The Applicant applied for judicial review 3 days late. The Applicant indicated that the reason for his delay is that he (who was self-represented at the time) thought that the 35-day time limit to apply for judicial review started counting from the date when he received notification of the AAT's decision, when in reality it counted from the date of the decision itself, made 3 days earlier.
The Applicant sought a time extension of 3 days within which to seek judicial review.
The Court said as follows about the delay:
-
- The Decision contained a date on which the Tribunal’s decision was made: CB77, but the correspondence accompanying the Decision with the subject line “NOTIFICATION OF DECISION – MR MOHAMMED MAAZUDDIN” was not so clear. The correspondence is dated 2 April 2020 and advises the applicant that “[w]e have decided to affirm the decision under review. This means that the decision of the delegate of the Minister remains in force and your application to have that decision changed has been unsuccessful”: CB76. There is no reference in the correspondence to the Tribunal’s decision having been made on a date earlier than the date of the correspondence.
- An information sheet accompanied the Decision: CB85-CB87. The first respondent relies on the information sheet in submitting that the information available to the applicant clearly indicated that an application for judicial review had to be made within 35 days of the date of the decision. The first respondent says there is no reference in the information sheet to the date of notification being the relevant point at which time started to run. Therefore, according to the first respondent, there is no basis for the applicant's mistaken belief that he could make his application for judicial review within 35 days of the date that he was notified of the Tribunal’s decision.
- The information sheet contains the following information about making a judicial review application: CB86:
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
(emphasis added)
Some of the questions to the Court were as follows:
Question 1: Did the AAT's information sheet clearly indicate that an application for judicial review must be made “within 35 days of the date of the decision”?
Question 2: Was the AAT's copying of those passages such that it failed to bring its own independent mind to bear on what would be the correct or preferable decision on the review?
Question 3: Did the AAT deny the Applicant procedural fairness in breach of s 359A(1)(a) of the Migration Act 1958 (Cth)? In other words, did the AAT fail to give the Applicant clear particulars of its intention to adopt the delegate's reasoning, which constituted the reason, or a part of the reason, for affirming the decision that was under review?
The Court answered those questions as follows: