Determining the Tribunal’s Appeal Deadline Period
It has never been a straightforward case when determining notification of AAT Filing Deadlines (deadline to appeal a refusal decision). Case Laws have always been back and forth with regards to the above topics.
What Does the Migration Act 1958 Say?
Section 66(2) of the Migration Act
Migration Act 1958
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
(c) unless subsection (3) applies to the application--give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
(e) in the case of a fast track reviewable decision--state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and
(f) in the case of a fast track decision that is not a fast track reviewable decision--state that the decision is not subject to review under Part 5, 7 or 7AA.
Incorrectly Determining That Tribunal Has the Power to Extend the Filing Deadline
Let’s rewind history. First, there was a decision by Justice Greenwood of the Federal Court in B (name redacted) v Minister of Home Affairs (No.2) in 2018 which stirred things up by making a judgement contrary to what was long considered settled law, that the Tribunal does have the power to extend the filing deadline.
Then, in December 2018, the Full Court in B (name redacted) v Minister for Immigration and Border Protection held that the filing deadlines cannot be extended after all. In other words, this case confirmed that B (No. 2) was incorrectly determined.
MVP Case of the Year – DFQ17 v Minister for Immigration
Then, our MVP case of this year was introduced – DFQ17 v Minister for Immigration, the Full Court had held that in order to have ‘stated’ within the meaning of s 66(2)(d)(ii) the time within which application for review could be made, the notification had to ‘set out the information in each of the subsections in a way which is not only complete but clear as well.
The scenario of DFQ17 is as follows: the notification was sent to the applicant by post. The notification included a reference to the 7 day period on which the applicant was taken to have received the notification by post on Page 3 under the heading ‘Financial or Case Worker Assistance”, and the 28 day period within which the application had to be filed with the tribunal on another page headed “Review Rights”. Hence, the notification may be complete but not clear as to when the last day to appeal to the Tribunal is.
After DFQ17, it seemed that any notification letter that did not actually state the date by which an application for review to the Tribunal had to be filed might be vulnerable to the challenge. Hold your thoughts.
Sufficient to Meet Requirement for Clearly Stating Review Rights Period When Refusal is Sent by Email
In July 2019, Ali v Minister for Home Affairs held that where the notification of the refusal is sent by email, and the notification letter does no more than state that the applicant for review must be filed in 21 days, that is sufficient to meet the requirement for clearly stating the period within which an application for review must be filed. In addition, in Ali, the statement that the notification was taken to have been received on the day it was transmitted was correctly located under the heading “Lodging an Application for Review” where it is sensibly located.
Then, there comes the case of BMY18 confirms the decision in DFQ17 for the following two questions.
1. Is the fact that a notification is sent by email in itself sufficient to distinguish a case from DFQ17?
The fact that a notification is sent by email is not in itself sufficient to distinguish a case from DFQ17. There may be cases where the notification was sent by email where the statement as to when it is taken to have been received will be sufficient. The decision of Nicholas J in Ali was one such case. In that case, the notification was sent by email but the statement that it was taken to have been received on the day it was transmitted was correctly located under the heading ‘Lodging an Application for Review’ where it was sensibly located. But Ali does not stand for the broader proposition that simply because the notification was sent by email that DFQ17 does not apply. No doubt, sending the notification by email reduces the double-counting problem, but the question still remains: is the notification clear? In general, where the information as to when the notification is taken to have been received is located in the notification away from the section dealing with review rights and under an incorrect heading, there is likely to be a problem and that problem is not solved merely because it was sent by email.
2. What is the ratio decidendi (the rule of law on which a judicial decision is based) in DFQ17?
It is not whether or not the notification is “piecemeal, entirely obscure or essentially incomprehensible”. It is whether the notification clearly conveys the deadline for making a valid merits review application being “piecemeal, entirely obscure or essentially incomprehensible” is only a manifestation of a notification that does not clearly convey the deadline.
What Is the Last stand and What Should We be Looking in Department’s Refusal Notifications?
Check whether the notification is sent by post or email
Try to find out whether the “prescribed timeframe” and “you are taken to have received the notification” are under the same heading, “Review Rights”
How Does the Counting For Last Day to Appeal Work?
With regards to notification by post:
As explained in DFQ17, where a notification is sent by post it is taken to have arrived on the seventh day after the date it bears but the 28 day review application period (or 21 days for Part 5-Reviewable Decisions under s 347(1)(b)(b)) is taken to commence on that day with the consequence that the seventh day counts twice. In consequence, the time to apply for a review is within 34 days of the date the letter bears. This is the sum of the number of days the letter is taken to arrive (7) plus the review period (28) less the fact that the review period starts on the seventh day (-1). The temptation to add 7 to 28 to get 35 must be resolutely resisted.
With regards to refusal notification by email:
In contrast, where a notification is sent by email, the time to apply for a review is a 27 day period commencing on the day the email is sent; that is to say, the review must be lodged before the end of the 27th day after the email was sent. So the appeal time for notifications sent by post is 34 days and for those sent by email 27 days.
How can we help you?
If you have a visa refusal and you think you do not have a jurisdiction to appeal your case at AAT, don’t entirely lose hope yet. The recent case of BMY18 may have a solution for you. It’s not the end of the world; just talk to one of our lawyers immediately. This is because help will always be given at Agape Henry Crux, to those who seek for it.
We speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.