Federal Court (Full Court): AAT had to make a decision within 84 days of the delegate's decision. Hearing was scheduled for 1 week before that deadline, but the Appellant was not ready to present arguments by then. AAT adjourned hearing for just 1 day, on the assumption it had to give reasons within the above deadline. Was that assumption wrong? Further, was the visa refusal notification invalid, by analogy with DFQ17 ? With respect and the benefit of hindsight, could Appellant have made an additional argument?
The Minister refused to grant the Appellant a visa on the basis that he failed the character test under s 501 of the Migration Act 1958 (Cth).
The Appellant applied under s 500 to the AAT for review of the Minister's decision. According to subsection (6L), if the Tribunal did not make the decision within 84 days of the Minister's decision, that decision would automatically be affirmed by operation of law:
(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.
On the day scheduled for the Tribunal hearing (1 week before the 84-day deadline), the Appellant's representative advised the Tribunal that the representative would not be able to attend the hearing due to a commitment in the District Court of Western Australia. In addition, the Minister had not sent the Appellant some documents as required. The Appellant attended the hearing on his own and sought an adjournment, so that he could be represented, obtain documents from the Minister and make submissions.
The Tribunal acknowledged that the Appellant was in a difficult situation and that, under normal circumstances, it would give him a lengthier adjournment. However, the Tribunal said it had no alternative but to adjourn the hearing for just 1 day, as it needed sufficient time to write the reasons for decision within the above deadline.
The Tribunal affirmed the Minister's decision and gave written reasons within those 84 days. The Appellant applied to the Federal Court (FCA) for judicial review of the AAT's decision.
The FCA dismissed that judicial review and the Appellant eventually appealed the FCA decision to the FCAFC.
The questions to the FCAFC were as follows:
Question 1: was the refusal notification issued pursuant to s 501G(1) invalid, with the result that the 84-day deadline did not lapse on the day the Tribunal assumed it would? The argument made by the Appellant was, to some degree, similar to that in DFQ17, namely that the notification letter was invalid in that it did not clearly convey the review application deadline.
Question 2: if the refusal notification was valid, did the Tribunal made an error by treating the 84-day deadline as applying to both the making of a decision and the giving of reasons for that decision where s 501(6L) should only apply to the making of a decision?
Question 3: if the Tribunal made an error, was that error jurisdictional?
Question 4: if the error was jurisdictional, was there utility in quashing the AAT's decision, given that the 84-day deadline had lapsed anyway by the time of the FCFAFC's decision?
The FCAFC answered as follows:
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