More hope for “late” Tribunal applications?

Federal Court. In DFQ17 and BMY18, Full Court of FCA held that, in order for a notification of visa refusal under s 66(2)(d) to be valid, it had to "clearly state" the deadline for applying for merits review. As a result, the "late" AAT applications in those cases were actually not late. In Ali, a single judge of the FCA distinguished DFQ17, holding that the notification in that case clearly stated the deadline for an AAT application. As the circumstances in Ali (i.e. email notification with deadline of 21 calendar days) reflect the vast majority of notifications sent by the Department, Ali had the practical effect of indicating that the error found in DFQ17 only applied to exceptional cases. Now, another single judge of the FCA held, although in obiter (*), that Ali does not sit comfortably with DFQ17 & BMY18 and that the latter decisions should be followed.

* Briefly speaking, something said by a court in obiter (obiter dicta) is not, strictly speaking, a binding precedent, although it might have persuasive value if argued convincingly.

The questions to the Federal Court (FCA) in this case were as follows:

Question 1: If a single judge of the FCA considers that a decision of the Full Court of the FCA (FCAFC) is wrong, can the single judge decline to follow that decision?

Question 2: If the answer to Question 1 is "no", but that single judge considers that the FCA decision is plainly wrong, can his/her Honour decline to follow that decision?

Question 3: Are the FCAFC decisions in DFQ17 and BMY18 wrong or plainly wrong?

Question 4: Was Ali wrongly decided?

The FCA answered those questions as follows:

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