Did the 84-day deadline apply?

Federal Court (Full Court): AAT dismissed application under s 42A of AAT Act. Applicant applied for reinstatement of that application. AAT refused to reinstate on the assumption that, if it reinstated, the original decision would be affirmed by operation of s 500(6L) of the Migration Act, thus rendering reinstatement useless. Was that assumption wrong? If so, could this judgement have the effect of tempting applicants, in some circumstances, to seek, in effect, a time "extension" by causing the AAT to dismiss an application, as odd as that looks at first glance?

The Full Court of the Federal Court (FCAFC) summarised the facts as follows:

1    This is an appeal from a decision of the primary judge dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal.

2    The facts are not in dispute and can be stated briefly. The appellant, Hanz Christian Somba, is a citizen of Indonesia. He was in Australia on a visa which, in June 2016, was cancelled under s 501(3A) of the Migration Act 1958 (Cth) because he failed to pass the character test. On 24 October 2017 a delegate of the first respondent (the Minister) made a decision not to exercise the Minister's power under s 501CA(4) to revoke that mandatory cancellation, and Mr Somba was notified of that decision the following day.

3    On 1 November 2017 Mr Somba applied for review of the delegate's decision by the Tribunal. A hearing of his application was scheduled for 8 January 2018 but he did not appear at that hearing. Due to his failure to appear, the Tribunal dismissed his application for review, under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

4    On 6 February 2018 Mr Somba applied for reinstatement of his application. On 5 June 2018 the Tribunal decided not to reinstate the application. That is the decision in respect of which Mr Somba sought judicial review.

The reason why the Tribunal decided not to reinstate the review application was as follows.

Section 42A of the AAT Act included the following provisions:

Dismissal if party fails to appear

(2)    If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

(a)    if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or

...

(8A)    If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.

(8B)    For the purposes of subsections (8) and (8A), the period is:

(a)    28 days after the party receives notification that the application has been dismissed; or

...

(9)    If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

Subsection 500(6L) of the Migration Act 1958 (Cth) provided as follows (emphasis added):

(6L)If:

(a)an application is made to the Tribunal for a review of 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; and

(b)the decision relates to a person in the migration zone; and

(c)the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.

It was not in dispute that the Tribunal, in fact, dismissed the review application under s 42A(2)(a). The Tribunal was obviously aware that it had, in fact, dismissed the application under that provision.

At the time the Tribunal made its decision on whether or not to reinstate the review application, more than 84 days had passed since the date of the delegate's decision.

The Tribunal found that if it reinstated the review application, the reinstatement would have the effect that the decision it had made under s 42A would have no legal consequence.

The Tribunal assumed that the first instance of the term "decision" in s 500(6L)(c) was a reference to a decision which had legal consequences and that a decision in fact made but without any legal consequences would not be captured by that provision.

As a result, the Tribunal reasoned that if it reinstated the review application, the effect of the reinstatement would be that it could not be said that it had made a "decision" (with legal effect) under s 42A of the AAT Act within 84 days of the delegate's decision. It would follow that s 500(6L)(c) would be satisfied, with the result that the delegate's decision would be affirmed by operation of law under s 500(6L). In that case, reinstatement would serve no purpose and for that reason the AAT refused to reinstate the review application.

Was the Tribunal 's assumption based on an incorrect interpretation of the term "decision" where it first appears in s 500(6L)(c)?

If so, could this judgement have the effect of tempting applicants, in some circumstances, to seek, in effect, a time "extension" by causing the AAT to dismiss an application, as odd as that looks at first glance, as we explain below?

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