Non-compliance with s 127

Federal Court. DHA sent visa cancellation notice on 20 Sep 2018 via email, while Respondent was in prison. Notice was handed to him on 21 Sep 2018, but stated it was delivered by email. Was such defect immaterial, as AAT calculated timeframe by reference to the latter date? Was notice defective by not specifying decision was reviewable under Part 5? Can AAT application be lodged before notice is sent? If notice is defective, does it mean there is no deadline for AAT application? Must AAT consider application without application fee?

The notice of cancellation included the following passage:

You may make an application for merits review of this cancellation decision with the Administrative Appeals Tribunal (AAT).

An application for merits review of this decision must be given to the AAT within the prescribed timeframe.

The prescribed timeframe commences when you are taken to have received this letter and ends at the end of seven (7) working days after the day on which you are taken to have received this letter.

As this letter was sent to you by Email, you are taken to have received this letter at the end of the day it was transmitted.

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: The Department purported to send notice of visa cancellation under s 127 on 20 September 2018 via email, while the Respondent was in prison. The notice was handed to him on 21 September 2018, but stated that it was delivered by email. Was such defect immaterial, as the Tribunal calculated the timeframe for making a valid Tribunal application by reference to the latter date?

Question 2: Paragraph 127(2)(b) required the notification to "state whether the decision is reviewable under Part 5 or 7". The notice did not specify that the cancellation decision was reviewable under Pt 5 of the Act. Does it follow that the notice did not comply with s 127(2)(b)?

Question 3: "The Minister submitted that when first enacted, there existed different tribunals to which an application for review of different migration decisions might be made under the Act. The purpose of s 127(2)(b) was to assist the review applicant to identify the applicable tribunal. It was submitted that upon the later amalgamation of the tribunals, that purpose fell away. The Minister submitted that the present purpose of s 127(2)(b) was to advise the review applicant that an application may be lodged with the Tribunal. Which Part of the Act governed the review amounted to nothing more than information about the “technical structure” of the Act and could serve no apparent purpose, so it was submitted". In answering Question 2, was it enough for the Minister to "posit a reason why the distinction between Pt 5 and Pt 7 may not be as important as it once was, because the Tribunal with jurisdiction to conduct reviews under both Parts is the now the same body"?

Question 4: The previous version of s 127(2)(b) read: "if the decision is reviewable under Part 5 or 7 [sic]; and". The explanatory statement to the Act which then amended s 127(2)(b) stated that the amendment was made to resolve an ambiguity, so that the notice would state “whether a decision is reviewable under Part 5 or 7 rather than if it is reviewable”. Can it be said that, regardless of the fact that the previous version of s 127(2)(b) missed a verb (such as "state"), the amendment did not go beyond the ambiguity of the use of the word "if"?

Question 5: Is a person necessarily precluded from making a merits review application at any time before a notice complying with s 127(2) is given to the review applicant?

Question 6: If a notification purportedly issued under s 127 does not strictly comply with the requirements of s 127, does the fact that the recipient actually received the notice on a particular date nevertheless mean that the timeframe for making a valid merits review application commenced to run on that date? In other words, if the notice does not strictly comply with the requirements of s 127, is the question of whether such non-compliance invalidates the notification (with the consequence that the timeframe for making a valid merits review application has not run out) determined subjectively by reference to whether an applicant needs assistance in order to determine that timeframe?

Question 7: Is proof that the Tribunal erroneously found it had no jurisdiction sufficient to establish jurisdictional error, without the need to establish that the error was material to its decision?

Question 8: In determining whether non-compliance with s 127(2)(b) affected the Tribunal's non-jurisdiction decision with jurisdictional error, can it be said that such effect did not exist, as there was no adverse consequences to Respondent, who subjectively knew the timeframe for making a valid merits review application?

Question 9: Is the Tribunal required to determine the Respondent's merits review application regardless of whether the application fee is paid?

The FCA answered those questions as follows:

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