Appeal: s 29(1)(c) of the AAT Act interpreted

Federal Court (Full Court). Is s 29(1)(c) of the AAT Act satisfied by an implicit statement drawn by inference from the way in which the decision under review was identified or by documents which accompany the Tribunal application? Is the requirement to lodge an application within the prescribed time in s 29(1)(d) essential to its validity?

The appellant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). On 16 March 2021, the appellant was notified that a delegate of the first respondent (Minister) refused to revoke the cancellation pursuant to s 501CA(4) of the Act.

If the appellant wished to seek merits review of the delegate’s decision, he had to apply to second respondent (Administrative Appeals Tribunal) within 9 days of the day on which he was notified of that decision, as per s 500(6B) of the Migration Act. That application had to be brought in the Tribunal’s General Division, not in the Migration and Refugee Division (MRD).

Section 29(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provided that the appellant’s application to the Tribunal “must contain a statement of the reasons for the application”.

On 24 March 2021, the appellant applied to the Tribunal for review of the non-revocation decision, using a form eM2, which was not the form designed for applying for a review of decisions made under s 501CA(4). Form eM2 was designed for use in the MRD and did not contain a question or dedicated space for identifying the reasons for making the application. Instead, form eM2 contained a space entitled “Decision to be reviewed”. In that section of the form, more particularly under “Decision for review”, the appellant wrote “Non-revocation of a visa cancellation”.

The form designed to be used for review of decisions under s 501CA(4) was headed “Application for Review of Decision (Individual)”, section 3 of which was entitled “Reasons for the Application”, in which the following text appeared:

Why do you claim the decision is wrong?*

Please read the “reasons you are making an application” section in the Guide to applying for a review before answering this question.

A statement was provided on 9 April 2021, after the 9-day deadline. The Tribunal held that the application was valid, but affirmed the decision under review.

The appellant then applied in the Court’s original jurisdiction for judicial review of the Tribunal’s decision. The Minister contended before the primary judge that the Tribunal did not have jurisdiction, due to s 29(1)(c) of the AAT Act. The primary judge accepted the Minister’s argument and ruled that the Tribunal application was invalid, thus dismissing the judicial review application. The appellant eventually appealed to the Full Court, but changed his position, arguing on appeal that the Tribunal application did contain a statement of reasons for the application, to which the Minister did not object. The Full Court granted leave to raise that issue. The issues before the Full Court were whether the Tribunal application contained a statement of reasons and, if not, whether that application was valid.

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Is the practice of an applicant submitting in their statement of reasons that there was "error in fact and law" unhelpful but sufficient?

Question 2: Is s 29(1)(c) of the AAT Act satisfied by an implicit statement drawn by inference from the way in which the decision under review was identified or by documents which accompany the Tribunal application?

Question 3: Will it "always be implicit from the lodging of a document indicating that the applicant wishes to apply for review of a decision (whether or not the decision or reasons are attached) that an applicant wants to initiate a review of the decision"?

Question 4: Will it "not necessarily be the case that the applicant seeks the review because the applicant considers that the decision is wrong or that it contains some error"?

Question 5: Is the use of mandatory language in a provision regulating the exercise of a statutory power (such as "must" in s 29(1)(c)) of itself sufficient to supply the answer to the question of whether non-compliance with the provision results in invalidity?

Question 6: If the answer to Question 5 is 'no', does it follow that the use of mandatory language is irrelevant to determining whether non-compliance with the provision results in invalidity?

Question 7: Section 29(1)(a) of the AAT Act required the Tribunal application to be made in writing. Would non-compliance with s 29(1)(a) result in invalidity of the Tribunal application?

Question 8: Section 29(1)(b) of the AAT Act provided that the Tribunal application "must be accompanied by any prescribed fee". Would non-compliance with s 29(1)(b) result in invalidity of the Tribunal application?

Question 9: Section 29(1)(d) of the AAT Act provided that the Tribunal application "shall be lodged with the Tribunal within the prescribed time". Would non-compliance with s 29(1)(d) result in invalidity of the Tribunal application?

Question 10: Can it be said that "the presumption that a word is used with a uniform meaning in a statute, or even in the one section, readily yields to the context"?

Question 11: Is an application which does not comply with s 29(1)(c) of the AAT Act an invalid application?

The FCAFC answered those questions as follows:

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