Late AAT applications: DFQ17 clarified

Federal Court (Full Court): In DFQ17, the FCAFC held that a notification letter sent by DHA did not clearly convey the deadline for an AAT application and, as a result, a "late" merits review application was actually not late. Then, the FCA decision in Ali distinguished DFQ17 by holding that a notification letter sent via email and setting out a deadline of 21 calendar days did clearly convey the deadline. Now, the FCAFC has answered whether "the fact that a notification is sent by email is ... in itself sufficient to distinguish a case from DFQ17".

The Full Court of the Federal Court (FCAFC) heard 2 appeals consecutively, namely BOQ15 v Minister for Immigration and Border Protection (‘BOQ15’) and BMY18 v Minister for Home Affairs (‘BMY18’).

BOQ15

In BOQ15, the delegate who refused to grant the visa was required by s 66(2)(d)(ii) of the Migration Act 1958 (Cth) to ‘state … the time in which the application for review may be made’. Regulation 4.31 of the Migration Regulations 1994 (Cth) required any merits review application to be made within 28 days of the day when the decision was notified to the Appellant.

The FCAFC summarised the calculation of the merits review application deadline as follows:

16    Because the Appellant was notified by registered post, s 494C(4) had the effect, as already noted, of deeming the notification letter to have been received by the Appellant 7 working days after the date of the notification letter. Since the letter was dated Tuesday 24 February 2015 this meant that it was deemed to have been received by the Appellant on Thursday 5 March 2015. The operation of reg 4.31 then meant that any review application had to be brought within a further 28 days of that date.

17    The relevant portion of the notification letter said this:

Review rights

No further assessment of this visa application can be taken at this office. However, you are entitled to apply to the Refugee Review Tribunal (RRT) for a review of this decision. An application for review of this refusal decision must be given to the RRT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.

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

As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven (7) working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted.

BMY18

The FCAFC summarised the calculation of the AAT application deadline as follows:

28    The notification letter was dated 9 January 2018. One part of the letter dealt with review rights under the heading ‘Review Rights’. This appeared at the foot of p 1 of the letter but went over to the top of p 2 as well. It was in these terms:

Review Rights

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 refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.

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

29    There was no mention in this part of the letter of when it was that the Appellant was taken to have been notified of the decision. However, towards the lower half of p 3 of the letter under the heading ‘Financial or case worker assistance’ there appeared this statement:

If you are receiving Status Resolution Support Services (SRSS), you are refused a protection visa, and you do not lodge an application for review with the AAT, you will be transitioned out of the SRSS programme within seven business days from the end of the prescribed timeframe for seeking merits review.

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.

The questions to the FCAFC were as follows:

Question 1: Could it be said that, like in DFQ17, BOQ15's deadline for making a valid merits review application was not clearly conveyed in the notification letter, with the result that the Appellant's Tribunal application was not late?

Question 2: Could it be said that, like in DFQ17, BMY18's deadline for making a valid merits review application was not clearly conveyed in the notification letter, with the result that the Appellant's Tribunal application was not late?

Question 3: Is the fact that a notification is sent by email in itself sufficient to distinguish a case from DFQ17?

Question 4: What is the ratio decidendi in DFQ17?

The FCAFC answered the above question as follows:

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