DFQ17 distinguished

Federal Court: a single judge of the FCA accepted that DFQ17 stood for the proposition that refusal letters must clearly convey the deadline for merits review, but also accepted the Minister's argument that the particular letter did so. As a result, arguing DFQ17 has now become more challenging, meaning that submissions on DFQ17 need to be really well articulated.

Summary and discussion

The Minister refused to grant the Appellant a visa. The Appellant was notified of that decision by a letter dated 21 April 2017, which was sent via email. That letter included the following passages:

An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter...

As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted

On 25 May 2017, the Appellant applied to the Tribunal for merits review and the Tribunal determined that it not have jurisdiction in the matter as the application was lodged late.

The Appellant then unsuccessfully applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision and eventually appealed the FCCA's decision to the Federal Court (FCA).

The Appellant was self-represented in court. The Minister's lawyer referred the single judge to the Full Court decision in DFQ17, which suggests that the Appellant did not argue it in his favour.

The single judge said as follows at [25]:

25    I am bound by DFQ17 and must follow it in so far as it concerns the proper construction of s 66(2)(d) of the Act. It is authority for the proposition that s 66(2)(d)(ii) requires that the relevant information (ie. the time in which the application for review may be made) must be clearly conveyed.

However, the single judge found that the deadline in question had been clearly conveyed and thus distinguished DFQ17 for the reasons given in the below extract...

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