Federal Court. Would a Tribunal application to review a decision made under s 501CA(4) of the Migration Act 1958 (Cth) be invalid and of no effect if it failed to "contain a statement of the reasons for the application", as required by s 29(1)(c) of the AAT Act, even if such a statement were subsequently provided to the Tribunal, but after the deadline for a merits review application?
The Federal Court (FCA) said as follows:
23 Section 29(1) of the AAT Act provides:
(1) An application to the Tribunal for review of a decision:
(a) must be made:
(i) in writing; or
(ii) if the decision is reviewable in the Social Services and Child Support Division – in writing or by making an oral application in person at, or by telephone to, a Registry of the Tribunal; and
(b) must be accompanied by any prescribed fee; and
(c) unless paragraph (ca) or (cb) applies or the application was oral – must contain a statement of the reasons for the application; and
(ca) in respect of an application made under section 54(1) of the Australian Security Intelligence Organisation Act 1979 for review of a security assessment – must be accompanied by:
(i) a copy of the assessment as given to the applicant; and
(ii) a statement indicating any part or parts of the assessment with which the applicant does not agree and setting out the grounds on which the application is made; and
(cb) in respect of an application under section 54(2) of the Australian Security Intelligence Organisation Act 1979 – must be accompanied by a statement setting out the grounds on which the application is made;
(d) if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) or (5A) – shall be lodged with the Tribunal with the prescribed time. …
24 By s 29AB of the AAT Act, the Tribunal may require an applicant to provide clarity in relation to the statement of reasons referred to in s 29(1)(c):
29AB Insufficient statement of reasons for application
If the Tribunal considers that an applicant’s statement under paragraph 29(1)(c) does not clearly identify the respects in which the applicant believes that the decision is not the correct or preferable decision, the Tribunal may, by notice given to the applicant, request the applicant to amend the statement appropriately, within the period specified in the notice.
Some of the questions to the FCA were as follows:
Question 1: If the Tribunal attributes strong weight to a factor in favour of a non-citizen when assessing under s 501CA(4) of the Migration Act 1958 (Cth) whether to revoke the cancellation of a visa but overall finds under that provision that there is not "another reason" to justify revocation, can the Tribunal's error still be material and thus jurisdictional? In other words, does the question of whether an error under s 501CA(4) is material depend on a balancing, not binary, exercise?
Question 2: Would a Tribunal application to review a decision made under s 501CA(4) of the Migration Act 1958 (Cth) be invalid and of no effect if it failed to "contain a statement of the reasons for the application", as required by s 29(1)(c) of the AAT Act, even if such a statement were subsequently provided to the Tribunal, but after the deadline for a merits review application?
The FCA answered those questions as follows: