AAT made decision after the 84-day deadline

Federal Court: AAT mistakenly added 1 week to the 84-day deadline for making a decision (s 500(6L)) and neither Applicant nor Minister noted it at directions hearing. Minister's advocate noted the mistake only after the actual deadline and before the mistaken deadline and notified Tribunal, which nevertheless proceeded to provide reasons for affirming the original decision. Did the AAT make a decision? Did the Federal Court have jurisdiction for a judicial review application? If so, what remedies were available?

The Applicant's visa was mandatorily cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) and a delegate subsequently declined to revoke the cancellation.

The Applicant then applied within the statutory timeframe to the Tribunal (AAT) for merits review of the non-revocation decision.

Subsection 500(6L) applied to the Applicant. As a result, if the Tribunal did not made a decision under any of ss 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1977 (Cth) within 84 days after the Applicant was notified of the delegate’s decision, the Tribunal would be taken to have made a decision affirming the delegate’s decision. The 84 days elapsed on 22 May 2019.

On 14 March 2019, at a case management telephone directions hearing attended by both the Applicant and the Minister's advocate, the Tribunal briefly (and mistakenly) stated that the deadline was 29 May 2019, to which neither party objected. The Federal Court (FCA) found that the parties had not acquiesced in the mistaken deadline, but rather did not notice the mistake.

According to the FCA:

7    The Tribunal had completed preparing draft reasons for a decision to be made, after editing, in time for the incorrect deadline, but after the correct 22 May 2019 deadline. On 27 May 2019, before the decision was made and reasons published, the solicitor advocate who had appeared for the Minister at the Tribunal hearing rang the Sydney registry, pointing out that the last date for publication of the decision had passed on 22 May 2019. The same day, the Tribunal registry sent a letter [the 27 May 2019 document] to the Minister’s solicitors describing what had happened as summarised above and concluding in the final two paragraphs as follows:

The presiding Tribunal Member completed his draft Reasons for Decision in this matter on Friday, 24 May 2019. That draft was submitted for editing in order for the decision to be entered and published on or prior to 29 May 2019. A signed and sealed copy of the Reasons for Decision bearing today’s date is also attached.

The Tribunal apologies [sic] for and otherwise acknowledges the abovementioned administrative oversight.

8. The letter enclosed the last page of the transcript of the 8 May 2019 hearing and what looked like and was described as “DECISION AND REASONS FOR DECISION” dated 27 May 2019 to which the seal of the Tribunal was affixed with the following being inserted: “[SGD]”. This was the means by which, ordinarily, a published copy of Tribunal reasons signify that the original copy had been signed by the relevant Tribunal member.

The Tribunal's decision affirmed the non-revocation decision.

The Applicant eventually applied to the FCA for judicial review of the Tribunal's decision, seeking the following relief:

[1]    A writ of prohibition preventing the First Respondent from acting, or taking any steps in reliance, on the decision of the Administrative Appeals Tribunal (Tribunal) (Senior Member Tavoularis) made on 27 May 2019.

[2]    A writ of certiorari quashing the decision of the Tribunal made on 27 May 2019.

[3]    A declaration that the decision of the Tribunal made on 27 May 2019, and the reasons for decision given by the Tribunal, were made without power and are of no effect.

[4]    An injunction restraining the Respondents from acting upon the decision of the Tribunal made on 27 May 2019.

The FCA agreed with the Applicant's description of the "following features of the 27 May 2019 document, and its surrounding circumstances, including the events described in the 27 May 2019 covering letter from the Tribunal registry and the contents of that letter itself:

(1)    viewed globally, it has all the ostensible features or hallmarks of the making of a final decision by the Tribunal to affirm, on the merits and pursuant to s 43(1) of the AAT Act, the delegate’s non-revocation decision;

(2)    it is signed by the senior member and his associate;

(3)    it describes evidence and submissions and contains reasoned intermediate conclusions;

(4)    it expresses a conclusion in affirming the delegate’s decision, which is strongly indicative of the purported exercise of power;

(5)    its contents therefore comprise a considered and reasoned purported decision;

(6)    the seal of the Tribunal was affixed to it in accordance with a direction made by the first President of the Tribunal, Justice Brennan, on 14 October 1976, which is still in force;

(7)    it was published on the internet, in accordance with a policy as to the publication of decisions issued by the President of the Tribunal, Justice Thomas, with a title and medium neutral citation;

(8)    there is nothing in the covering letter from the Tribunal registry to suggest that the 27 May 2019 document was a draft or to be regarded as anything other than a decision of the Tribunal, and there is nothing on its face to indicate that;

(9)    the Tribunal, or at least the registry, viewed the failure to correct the reference to 29 May 2019 at the end of the hearing as constituting some kind of acquiescence in the Tribunal having a later decision deadline (a proposition that I have rejected, but is nonetheless relevant)."

The reason for seeking relief despite the fact that the delegate's non-revocation decision had been affirmed by operation of law was that the Tribunal's purported decision made adverse findings against the Applicant who, at the time of the FCA's decision, had an intention to apply for a protection visa. The Applicant argued that it was possible that a case officer would have regard to the Tribunal's purported decision and reasons when assessing a protection visa application, which would be detrimental to the Applicant.

The questions to the FCAFC were as follows:

Question 1: Did the 27 May 2019 document constitute a decision by the Tribunal?

Question 2: Did the FCA have jurisdiction to hear the judicial review application?

Question 3: What form of relief, if any, should be granted?

The FCA answered those questions as follows:

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