FEDERAL COURT OF AUSTRALIA

Brown v Minister for Home Affairs [2018] FCA 1643

ORDERS

THE COURT ORDERS THAT:

1.    The time for the filing of a notice of appeal from the whole of the judgment of the Federal Circuit Court of Australia is extended to the date of filing of the notice of appeal on 3 April 2018.

2.    The first respondent file and serve written submissions on the question addressed at [38] to [68] of the reasons for judgment published today, within two weeks.

3.    The costs of the proceeding are reserved for later determination having regard to further submissions to be received from the first respondent.

4.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with an appeal from orders and a judgment of the Federal Circuit Court of Australia (the “Federal Circuit Court”) constituted by Judge Vasta delivered on 12 March 2018: Brown v Minister for Immigration and Border Protection [2018] FCCA 817.

2    The first respondent, the Minister for Immigration and Border Protection (the “Minister”), describes the appeal as having been commenced by a purported notice of appeal filed on 3 April 2018. The reason for that description is that a notice of appeal is to be filed within 21 days after the date when the judgment appealed from was pronounced: Rule 36.03(a)(i), Federal Court Rules 2011 (Cth) (the “Rules”). Accordingly, the notice of appeal was required to be filed by 2 April 2018. The notice was filed one day late. However, the Court may extend time under Rule 36.05 of the Rules.

3    The first respondent consents to an order that the purported notice of appeal be treated as an application for an extension of time within which to appeal (pursuant to Rule 36.05) and that strict compliance with the requirements of Rule 36.05 be dispensed with (pursuant to Rule 1.34 of the Rules).

4    The Court will so treat the filing of the notice of appeal as carrying with it an application for an extension of time within which to appeal, as suggested by the Minister. The appellant, Mr Enesi Brown, is self-represented. The position adopted by the Minister in recommending that the filing of the notice of appeal be treated as carrying with it an application for an extension of time within which to appeal is the right and proper course to adopt. The orders will reflect that position.

5    It is now necessary to turn to the substance of the appeal and particularly a consideration of an important aspect of the matter of general application that has emerged in the course of reviewing the material after the conclusion of the oral hearing.

6    The background matters are these. All of the matters set out at [7] to [37] are uncontroversial in the sense that they are not contested by the parties. They are recited here as matters explanatory of the context leading to the critical matter discussed from [38] of these reasons.

7    On 2 October 2008, the appellant, as applicant, applied for a Partner (Provisional) (Class UF) visa (otherwise known as a “provisional partner visa”). The appellant nominated his wife, Roselyn Ah-Kan as his sponsor (the “sponsor”). The appellant and his wife had been married on 18 August 2008.

8    On 14 April 2009, a delegate of the Minister refused to grant the appellant a provisional partner visa.

9    The appellant sought review of that decision before the Migration Review Tribunal (“MRT”). That was a body established under the provisions of the Migration Act 1958 (Cth) (the “Migration Act”). The source of the powers and duties of that body were, of course, to be found within the four corners of the Migration Act and any other Act such as an amending Act, addressing those matters.

10    On 8 February 2010, the appellant advised the Minister’s department of his new residential address which was also his postal address, namely, 108 Ewing Road, Woodridge, Queensland, 4144 (the “Woodridge address”). The appellant also provided the department with an email address which was the email address for his wife.

11    On 26 May 2010, the MRT remitted the appellant’s application for a provisional partner visa to the Minister’s delegate with a direction that the appellant meets the following criteria in respect of a Spouse (Provisional) Subclass 309 visa, namely, clauses 309.211, 309.221 and 309.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”).

12    The appellant had, by this time, retained the services of a migration agent. The appellant’s migration agent operated under the business name Logan Migration Services. On 31 March 2011, the appellant’s migration agent submitted to the department a document described as Form 956 – Advice by a migration agent/exempt person of providing immigration assistance. That form provided the department with an address for correspondence on behalf of the appellant which was “PO Box 775, Springwood, Qld, 4127”. That address was the address for the appellant’s migration agent.

13    On 16 June 2011, the department wrote to the appellant care of Logan Migration Services in relation to the appellant’s application for a Subclass 309 Spouse (Class BC) visa. The application had been lodged at Suva on 2 October 2008. By its letter of 16 June 2011, the department granted the applicant that visa.

14    On 26 April 2016, the department sent an email to the appellant, to the email address nominated by him, attaching a letter dated 26 April 2016 which was also posted to the appellant at the Woodridge address namely 108 Ewing Road, Woodridge, Qld, 4144. By that letter, the department requested the appellant to provide further information in relation to an application he had made for a Partner (Migrant) (Class BC) Partner (Subclass 100) visa (the “Partner visa”). In that letter, the author of the letter, Mr Ryan Black, advised the appellant that he had commenced considering the appellant’s application for the visa and advised the appellant that the department required additional information. A summary of the information sought by the department was set out in an attached “Request Checklist and Detail” attachment to the letter: AB 202-211.

15    The letter, as sent to the Woodridge address, was returned to the department marked “Return to Sender”: AB 215.

16    On 26 April 2016, the department also sent a letter to the appellant by post addressed to the appellant’s migration agent, Mr Justin William Masima, enclosing the same letter requesting the further information related to the Partner visa: AB 212. That letter was also returned to the department marked “Return to Sender”: AB 213. In these letters from the department, the author advised the appellant that he was required to respond to the request within 28 days after being taken to have received the letters.

17    By letter dated 14 December 2016 addressed to Mr Brown at the Woodridge address, the department advised the appellant that the application for the Partner visa had been refused on 14 December 2016 on the footing that the appellant did not satisfy the provisions of the Migration Regulations. The letter attached a document described as the “Decision Record” dated 14 December 2016: AB 216-226. That letter was also sent by post to the Woodridge address. It was also sent to the address for the appellant’s migration agent: Annexure “JDP01” to the affidavit of Julian D’Arcey Pinder affirmed on 12 February 2018 at AB 274-275.

18    By application dated 17 January 2017, but apparently lodged on 16 January 2017, the appellant sought review of the delegate’s decision of 14 December 2016 before the Administrative Appeals Tribunal (the “AAT”): AB 228-238.

19    On 10 February 2017, the AAT wrote to the appellant inviting him to comment on the validity of the application for review noting these matters (AB 250-251):

I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was posted to you on 14 December 2016 and, on the basis that 23 December 2016 was the date on which you are taken to have been notified, the last day for lodging the application for review was 13 January 2017. As the application was not received until 16 January 2017, it appears to be out of time. However, this is a matter which must be determined by a member.

20    In that letter, the appellant was advised that if he wished to make any comments as to the validity of his application for review, he was invited to do so in writing by 7 March 2017. He was advised that his application, with any comments, would be referred to a member to decide the question of validity.

21    On 24 February 2017, the appellant responded to the AAT’s letter of 10 February 2017. In the appellant’s letter of 24 February 2017, he said this (AB 252-253):

Department of AAT

[Address]

To Whom May Concern:

(Department of AAT)

Thank you for your letter received 17th [Feb] 2017.

In respect to your department we would like to apologise for the lateness of our review application form.

We would like to apologise for this situation.

The address that the department of immigration sent their correspondence for us to notify them, we moved out in the year 2010 so we didn’t [receive] any letters from immigration or from the migration agent that helped us with my stuff.

When my first tribunal decision was approved the migration agent at that time told us that we have to wait 2 years and [that’s] it. So we assume there is nothing else to do after that 2 years, so we had no more communication with the migration agent that did my partners visa and tribunal case.

Please in respect to your Department [it’s] an honest mistake that we did not know there was any second stage beyond that, that is the reason why we were late in providing the review application form on the 16th of [Jan] 2017. We were living at 33/62 Victor street, [Runcorn] from [M]arch 2016 until now and still living at this address, [that’s] why we didn’t receive any letter from the department of immigration.

In respect to your department, [the] reason why we knew about this immigration situation was when my ([E]nesi [B]rown) special benefit was cancelled without any explanation so we called [Centrelink] and they said something [was] wrong with my visa and we asked [Centrelink] why and they said they don’t know.

My wife received a letter from the local MP and it stated in the letter [that] if she needs any help with [Centrelink] and [Medicare] and immigration to contact them so we called them and they helped us and told us what was happening, so [that’s] the reason why we knew what was happening from the MP, so we went to the immigration department [B]risbane on the 13th [Jan] 2017 and the immigration told us 5 more days, they said to my wife [it’s] up to you whether your husband goes back to [S]amoa or stay over and when he is over to come back on the 19th [Jan] and they will give him a case manager to help him out.

We [arrived] home, we [didn’t] know what to do so we call[ed] the immigration on that same day and they told us to ring the tribunal because they said [it’s] out of their hands, so we rang the tribunal same day and they told us to download the forms and fill it in and get it to the office of AAT Brisbane on [M]onday 16th [Jan] 2017 and that’s why we came to your office on the 16th [Jan] 2017 and your staff told us that it is out of the timeframe and [that’s] when we found out [it’s] out of timeframe. [That’s] the reason why [it’s] out of timeframe because we just found out there from your department and we [didn’t] receive any letters from immigration and Please in respect to your department and Hon Judges [that’s] the reason why it was out of timeframe.

In respect to your Department we apologise, I Love my family, I Love my kids and I love wife and I want to live with my family Legally and free Please.

Sincere Thanks & Respect to your Department of AAT

Enesi & Roselyn Brown

33/62 Victor Street

Runcorn, QLD 4113

22    As can be seen from the letter fully quoted above, the letter was written on behalf of both Enesi and Roselyn Brown. In the letter, it is clear that the authors make references to “your Department” and “your Department of AAT” and when they do so they are directing their remarks to the AAT.

23    On 24 March 2017, the Tribunal decided the question of the validity of the appellant’s application for review before the AAT. Relevantly, the Tribunal said this in its decision:

1.    An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 14 December 2016, to refuse to grant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (the Act).

2.    The review application was lodged with the Tribunal on 16 January 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review a decision as the application was not made in accordance with the relevant legislation.

3.    Pursuant to s 347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements. There is no provision for an extension of this time.

…

8.    The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 14 December 2016 and dispatched by post as required. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. In particular, the Tribunal is satisfied that the decision notice was valid and that it was sent by prepaid post on 14 December 2016 from a place in Australia to the applicant at an address in Australia, being the last residential address provided by the applicant for the purpose of receiving documents. The Tribunal notes from the applicant’s letter of 24 February 2017 that the applicant changed address to his current address in March 2016 however that change of address was not advised to the Department and the last residential address provided by the applicant was used by the Department.

9.    The Tribunal has carefully noted the contents of the applicant’s letter of 24 February 2017 and acknowledges the submissions as to why the applicant did not apply for review within the statutory timeframe. However, the Tribunal is bound to apply the law and has no discretion to accept the application for review out of time, whatever the reasons for applying out of time.

10.    The Tribunal finds that in accordance with s 494C of the Act, the applicant is taken to have been notified of the decision on 23 December 2016. Therefore, the prescribed period within which the review application could be made ended on 13 January 2017. As the application for review was not received by the Tribunal until 16 January 2017, it follows that the application for review as not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

DECISION

11.    The Tribunal does not have jurisdiction in this matter.

Susan Trotter

Member

24    The appellant sought review of the AAT’s decision before the Federal Circuit Court of Australia. The application for review was heard on 12 March 2018 and Judge Vasta delivered ex tempore reasons that day at the conclusion of the hearing. At [1] of the reasons, Judge Vasta makes this observation:

This is a rather sad state of affairs. The Applicant has appeared here today with his wife and child, and it has been quite an emotional hearing.

25    The primary judge then sets out much of the uncontroversial chronology described earlier in these reasons. The primary judge then observes that the date of 13 January 2017 is significant because the appellant by reason of the Migration Regulations (Reg 4.10(1)(a)) is deemed to have received the department’s letter of 14 December 2016 on a date which resulted in the 21 day period within which to lodge an application for review before the AAT expiring on 13 January 2017. There is no doubt that by reason of s 494C of the Migration Act, the appellant is taken to have received the delegate’s decision and therefore to have been put on notice of the decision on 23 December 2016. The period specified under Reg 4.10(1)(a) began to run with the result that the first day after the day that notice was received was 24 December 2016 and the 21 day period expired on Friday, 13 January 2017.

26    The primary judge then sets out further aspects of the matters referred to by the appellant in his letter (jointly with his wife) of 24 February 2017. The primary judge then makes these observations:

18.    Even taking the Applicant at his word that that is what happened, the true facts of the matter were that, by 16 January, he was out of time.

19.    There is no provision in the Act [which is a reference to the Migration Act 1958 (Cth) having regard to the definition adopted by the primary judge at [12] of the reasons] for the department or the AAT to extend the time in which an application can be made. It is, to use the vernacular, “sudden death”.

20.    Because of this filing with the AAT out of time, the AAT had absolutely no power with which to look at the matter.

21.    On 24 March 2017, the AAT made a decision that it did not have jurisdiction.

27    The primary judge then sets out the grounds upon which the appellant relied before the Federal Circuit Court in seeking to set aside the decision of the AAT. The primary judge at [23] observed that none of the grounds disclose jurisdictional error on the part of the AAT. The primary judge then said this:

24.    What they do show is a very unfortunate series of events where the Applicants were in a state of ignorance, but as the authorities show, ignorance is no excuse and ignorance cannot take the place of what it is that the Parliament has legislated.

25.    This has not been an easy matter. It would take someone with a heart of stone not to be moved not just by the pleas of the Applicant, but especially the pleas of the wife and the child, who sit dutifully in the back of [the] Court.

26.    But the oath that Judges of this Court take is to uphold the law without fear or favour and without sympathy or prejudice. It gives me no pleasure at all to make the ruling that I must now make, but the only ruling I can make is this: there is no jurisdictional error on the part of the Tribunal and the application must be dismissed.

28    The appellant has now appealed to this Court from the decision of the Federal Circuit Court of Australia.

29    Before addressing the issues raised by the appeal, it is necessary to give some further explanatory context which is also uncontroversial in the sense that no aspect of these matters I am about to mention is disputed by the parties and in particular by the Minister.

30    The decision of the Minister’s delegate of 14 December 2016 to refuse the appellant’s application for the Partner visa is a “Part 5 – reviewable decision” for the purposes of the Migration Act. The route to that conclusion is that by reason of s 338 of the Migration Act, a decision is a Part 5 – reviewable decision if s 338 so provides unless the factors recited at s 338(1)(a) to (d) apply. In this case, they do not apply. Section 338(2) provides, relevantly, that a decision to refuse to grant a non-citizen a visa is a Part 5 reviewable decision if all of the factors recited in that subsection apply. The Minister accepts that the decision of the Minister’s delegate is a Part 5 – reviewable decision by reason of s 338(2) of the Act. Item 1129 of Schedule 1 to the Migration Regulations which addresses the topic of “Partner (Migrant) (Class BC)” is also relevant to that question.

31    Section 347 of the Migration Act is, relevantly, in these terms:

DIVISION 3 – PART 5 – REVIEWABLE DECISIONS: TRIBUNAL REVIEW

Application for review of Part 5 – reviewable decisions

347    (1)    An application for review of a Part 5 – reviewable decision must:

(a)    be made in the approved form; and

(b)    be given to the Tribunal within the prescribed period, being a period ending not later than:

(i)    if the Part 5 – reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) – 28 days after the notification of the decision; or

…

(c)    be accompanied by the prescribed fee (if any).

…

(3)    If the Part 5 – reviewable decision was covered by subsection 338(2) …, an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

…

(5)    Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5 – reviewable decisions (which may be decisions that relate to non-citizens in a specified place).

32    The reference in s 347 to the “Tribunal” is a reference to the Administrative Appeals Tribunal: s 5 of the Migration Act.

33    Section 348(1) provides that subject to subsection (2), if an application is properly made under s 347 for review of a Part 5 – reviewable decision, the Tribunal must review the decision. Section 348(2) provides that the Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under s 339 of the Migration Act. Section 348(2) has no application in this case. Section 349 provides that the Tribunal may, for the purposes of the review of a Part 5 – reviewable decision, exercise all the powers and discretions conferred by the Migration Act on the person who made the decision. Section 349(2) then sets out the decisions the Tribunal may make.

34    As indicated above, s 347(1)(b) contemplates that an application for review of a Part 5 – reviewable decision must, if the decision is covered by s 338(2) (as it is in this case) be given to the AAT within a period ending not later than 28 days after the notification of the decision. However, s 347(5) contemplates that Regulations might be made for the purposes of s 347(1)(b) specifying a different period, and that has occurred. Regulation 4.10 of the Migration Regulations is in these terms:

4.10    Time for lodgement of applications with Tribunal (Act, s 347)

(1)    For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5 – reviewable decision must be given to the Tribunal:

(a)    if the Part 5 – reviewable decision is mentioned in subsection 338(2) or (7A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or

…

[emphasis added]

35    The time period commences to run when valid notification is given of the delegate’s decision in accordance with s 66(2) of the Act. Based on the material before it, the Tribunal found that valid notification of the delegate’s decision was given to the appellant in accordance with s 66(2) of the Migration Act on 14 December 2016 in accordance with the requirements of s 494B of the Migration Act. The Tribunal correctly found, consistent with the department’s records (AB 274-277) that the delegate’s decision was dispatched by post to the Woodridge address (and also to the address for the appellant’s migration agent), being the last residential or business address provided to the Minister by the appellant for the purposes of receiving documents (s 494B(4)(c)(ii) of the Act) and the dispatch was by prepaid post effected within three working days of the date of the document (s 494B(4)(a) and (b) of the Act). Thus, the appellant is taken to have received the delegate’s decision on 23 December 2016 having regard to ss 66(2), 494B(4) and 494C(4) of the Migration Act and Regulation 2.16(3) of the Migration Regulations.

36    Accordingly, the appellant was required to have made an application for review of the delegate’s decision on or before 13 January 2017.

37    The appellant was out of time when he lodged his application with the AAT on 16 January 2017.

38    The question raised by this appeal is this.

39    The Minister says that it is well settled that the Tribunal has no power to extend the time period for the lodging of a valid application for review of a Part 5 – reviewable decision “no matter how small the delay or compelling the circumstances, or whatever the reason for the default”. The difficulty with that proposition is this.

40    Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) addresses the topic of the “manner of applying for review”. Section 29(2) addresses the topic of the “prescribed time for making applications – general”. Generally, s 29 contemplates that the prescribed time for making an application to the Tribunal is within a period commencing on the day on which the decision is made and ending on the 28th day after, relevantly, the day on which a document setting out the terms of the decision is given to the applicant.

41    Of course, those timeframes do not apply because s 347(1)(b) as varied by Regulation 4.10 of the Migration Regulations as contemplated by s 347(5) of the Migration Act has established a period of 21 days as the relevant period.

42    However, s 29(7), (8), (9) and (10) address the topic of “Tribunal may extend time for making application”.

43    Those subsections of s 29 are in these terms:

(7)    The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

(8)    The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although the time has expired.

(9)    Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may:

(a)    give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or

(b)    require the applicant to give notice to those persons.

(10)    If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.

44    The review of a Part 5 – reviewable decision is made to the AAT.

45    The question is whether the general power conferred upon the Tribunal under s 29(7) and (8), in conjunction with s 29(9) and (10) of the AAT Act, to extend the time for the making of an application to the Tribunal for review, applies to an application to the Tribunal for review of a Part 5 – reviewable decision under s 347(1)(b) of the Act.

46    The Minister says that it is well settled that the Tribunal has no power to extend the time no matter how small the delay or compelling the circumstances might be for an extension.

47    The first case cited in support of that proposition is a decision of Justice Heydon in determining an application for special leave in SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66. However, that decision is concerned with the question of whether a power was conferred upon the Refugee Review Tribunal (the “RRT”) to extend the 28 day time limit expressed in s 412(1)(b) of the Migration Act and Regulation 4.31(2)(b) of the Migration Regulations for making an application to the RRT. Heydon J concluded that there was “no statutory power for the Tribunal, or anyone else, to extend the time limit, whatever the reasons for the default”. That decision was not concerned with statutory powers conferred upon the AAT under the AAT Act.

48    The second case cited by the Minister is a decision of Wigney J in Rana v Minister for Immigration and Border Protection [2014] FCA 1233. However, that decision was concerned with whether a discretion to extend time was conferred upon the Migration Review Tribunal. Wigney J concluded that no power had been conferred upon the MRT to extend the time within which an application could be made, or to otherwise waive the time limitation period prescribed by the legislation, or receive an application, out of time. Again, that decision was not concerned with statutory powers conferred upon the AAT under the AAT Act.

49    The Minister also cites in support of the proposition that there is no power in the AAT to extend the time for making an application for review under s 347(1)(b) as varied by Migration Regulation 4.10, decisions from 1998 and 2001 in the Federal Court.

50    The first is Ismail v Minister for Immigration & Multicultural Affairs [1998] FCA 1654, Wilcox J and the second is Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1710, North J. Both decisions are concerned with the question of whether any power was conferred upon the RRT to extend the time prescribed by s 412(1)(b) of the Migration Act in respect of an “RRT – reviewable decision”.

51    There is no doubt that no power was conferred upon the RRT to extend the time prescribed by s 412(1)(b) of the Migration Act for making an application in respect of an RRT – reviewable decision: Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407, Heerey J, Finkelstein J agreeing and Dowsett J agreeing.

52    The Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (the “1998 Amending Act”) effected amendments to the Migration Act in 1998 which commenced on 1 June 1999. The 1998 Amending Act by s 23 of Schedule 1 effected a repeal of s 501 of the Migration Act and substituted a new s 501.

53    That section consists of a number of subsections and it is not necessary to set out in these reasons any extensive examination of the scope of s 501. However, s 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Section 501(2) provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6).

54    Section 500(1) of the Migration Act provides that applications may be made to the AAT for review of decisions of a delegate of the Minister under s 501 of the Migration Act subject to particular decisions which are expressly excluded from review having regard to the totality of s 500.

55    When the Parliament amended the Migration Act by the 1998 Amending Act it also introduced an amendment to s 500 of the Migration Act to insert, relevantly for present purposes, s 500(6B) in these terms:

If a decision under section 501 of this Act relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.

[emphasis added]

56    These things should be noted.

57    Section 347 of the Migration Act does not confer on the AAT any power to extend the time limited by the conjunction of s 347(1)(b)(i), s 347(5) and Regulation 4.10 of the Migration Regulations. Moreover, no power to extend time is conferred upon the AAT expressly by any other provision of Part 5 of the Act. It would, of course, be unnecessary for the Parliament to expressly confer a power to extend time upon the AAT in each piece of legislation which confers jurisdiction upon the AAT to conduct a review of decisions made under the relevant Act, in circumstances where the AAT Act itself addresses the very question of whether the AAT has power to extend time in respect of applications made to it.

58    The amendment made by s 21 of Schedule 1 of the 1998 Amending Act to introduce subsection (6B) into s 500 of the Migration Act is particularly relevant.

59    Section 25 of the AAT Act addresses the topic of enactments that provide for applications for review of decisions before the AAT. Section 25(1) provides that an enactment, such as the Migration Act, may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. It should be noted that s 25(6) of the AAT Act is in these terms:

If an enactment provides for applications to the Tribunal:

(a)    that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 29AB, 29AC, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and

(b)    those sections and subsections have effect subject to any provisions so included.

[emphasis added]

60    Plainly enough, the Parliament took the view that, in respect of the time limit of nine days (after the day on which a person was notified of a decision in accordance with s 501G(1)), for the making of an application to the AAT for a review of a decision under s 501 of the Migration Act (relating to a person in the migration zone), it was necessary to expressly exclude the application of the general power to extend time under s 29(7), (8), (9) and (10) of the AAT Act. Plainly enough, the Parliament proceeded on the basis that those general provisions conferring power to extend time would otherwise apply.

61    There is no good reason to believe that these general provisions conferring a power on the AAT to extend time do not apply in relation to applications susceptible of review under s 347(1)(b)(i) of the Migration Act in respect of a Part 5 – reviewable decision.

62    A contrary position would only arise as a matter of statutory construction if the word “must” in s 347(1) carried with it an exclusion of the general power to extend time. However, the word “must” is also used in s 500(6B) and that word was not thought by the Parliament sufficient to exclude the operation of s 29(7), (8), (9) and (10) of the AAT Act with the result that the Parliament expressly adopted the further sentence in s 500(6B) quoted in bold at [55] of these reasons.

63    Section 347(1)(b) taken in conjunction with s 347(5) and Regulation 4.10 of the Migration Regulations might be thought to exclude the general power to extend time if those provisions were to be regarded as a comprehensive exclusionary code addressing the totality of the topic. That construction does not emerge from the consideration of the provisions and is inconsistent with, by parity of reasoning, the need to adopt s 500(6B) in respect of decisions under s 501 of the Act.

64    Further, that view, by parity of reasoning, is inconsistent with the approach adopted by the Full Court of this Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at [23], Gray J; R D Nicholson and Stone JJ agreeing. See also AFJ16 v Minister for Immigration and Border Protection [2017] FCA 523, White J at [23].

65    Accordingly, I am satisfied that the power conferred upon the AAT under s 29(7), (8), (9) and (10) to extend time applies in relation to applications for review of a Part 5 – reviewable decision under s 347(1)(b)(i) of the Act.

66    I am satisfied that the primary judge fell into error by holding that there is no power to extend time and I am satisfied that the AAT fell into jurisdictional error by reaching a mistaken conclusion as to the law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82], McHugh, Gummow and Hayne JJ. The AAT ought to have treated the application by the appellant, filed out of time, as an application for an extension of time for the filing of the application for review. There can be no doubt from the terms of the appellant’s letter dated 24 February 2017, that the appellant, by filing his application for review on 16 January 2017 in respect of an application for review that was required to be filed by 13 January 2017, was desperately seeking to engage the Tribunal’s review jurisdiction by seeking an extension of time for the making of the application to, in effect, 16 January 2017.

67    The order of the Federal Circuit Court of Australia dismissing the appellant’s application to that Court ought to be set aside with an order as to costs and in place of those orders an order ought to be made quashing the decision of the AAT and remitting to the AAT the consideration by the AAT of the appellant’s application for an extension of time for the making of the application under s 347(1) of the Act.

68    However, before making those orders, it is important to recognise that this question of the extent to which the powers conferred upon the AAT under the AAT Act to extend time in respect of the making of an application under s 347(1)(b) of the Migration Act has not been argued. The Minister, the AAT and the Federal Circuit Court of Australia all acted on the footing that there is no power in the AAT to extend the time for the making of the application for review. Certainly, no basis has been identified by either the AAT or the Federal Circuit Court for concluding that the general power in the AAT to extend time does not apply to a review of the decision in question here. The issue simply has not been addressed at all. Accordingly, I propose to make directions that the Minister put on submissions within two weeks going to the question of whether the Minister accepts or contests the proposition that the AAT has statutory power to extend the time for the making of the appellant’s application for review. The appellant is self-represented and is not in a position to make informed observations about the question in issue. However, the Minister is in a position to put on submissions on the question. I will consider the issues further upon receipt of those submissions.

Associate:

Dated:    31 October 2018