“Late” AAT applications: another piece to DFQ17’s jigsaw

Federal Court (Full Court). In DFQ17 and BMY18, FCAFC held that the notification letters under s 66 in those cases were invalid, as they did not clearly convey the deadline for merits review application. One of the reasons was that the statements as to when the notifications were taken to have been received were located under incorrect headings. Is the fact that, here, the statement was located under the correct heading, sufficient to distinguish DFQ17 and BMY18? Was the notification here unclear in that the "date the notification was received had to be determined by reference to the email, which was 'external' to the notification"? Is the "clearly convey" test an objective or subjective test? Was the notification here misleading in that it stated that a review application may not be accepted after the deadline? With respect, did FCAFC indirectly answer a further question it said it did not need to answer? 

Paragraph 66(2)(d) of the Migration Act 1958 (Cth) provides as follows:

(2)  Notification of a decision to refuse an application for a visa must:

...

(d)  if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:

(i)  that the decision can be reviewed; and

(ii)  the time in which the application for review may be made; and

...

The Department refused to grant the Appellant a visa and notified him of his review rights as follows:

Review rights

The decision can be reviewed.

The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. 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.

You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.

[Page 2]

This review period is prescribed in law and an application for merits review may not be accepted after that date.

Your immigration status

When your visa application was lodged, a bridging visa was granted to you for the duration of the visa processing period. If you make a valid application for merits review of this refusal decision then that bridging visa will remain in effect during the merits review proceedings. Otherwise your bridging visa will cease 28 calendar days after this notice is taken to have been received. More information on bridging visas is at www.border.gov.au/Trav/Visi/Visi/Bridging-visas.

[Page 3]

Receiving 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.

Under s 494 of the Act, a notification sent by email is taken to be received "at the end of the day on which the [notification] is transmitted".

The questions to the FCAFC were as follows:

Question 1: In DFQ17 and BMY18, the FCAFC held that the notification letters under s 66 in those cases were invalid, as they did not clearly state the deadline for merits review application. One of the reasons was that the statements as to when the notifications were taken to have been received were located under incorrect headings. Here, that statement was located under the correct heading. Is that sufficient to distinguish DFQ17 and BMY18?

Question 2: Can it be said that the notification here was unclear in that the "date the notification was received had to be determined by reference to the email, which was 'external' to the notification"?

Question 3: Is the test used to determine whether a notification letter clearly conveyed the deadline for a merits review application a subjective or objective test? In other terms, is the answer determined by reference to a person exercising reasonable care in the circumstances or is it determined by reference to the characteristics of the recipient in question, including his or her proficiency in English?

Question 4: Can it be said that "the notification was misleading because it stated that the review period was prescribed and 'an application for merits review may not be accepted after that date' (emphasis added)"? In other words, did the use of the word "may" suggest that an extension might be obtainable?

Question 5: Was the Tribunal correct to have found it lacked jurisdiction to hear the merits review application on the basis that "there was no evidence that the form of the notification played any role in the appellant’s failure to bring an application for review within the required period"?

The FCAFC answered those questions as follows:

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