Normally, applications to the AAT must be submitted within a prescribed timeframe. Failure to do so ordinarily relieves the applicant of their right to seek merits review of the decision of the Department. However, as of recently, the Full Court of the Federal Court has handed down a decision in the case of DFQ17 v Minister for Immigration and Border Protection that allows individuals and businesses whose merits review applications had been lodged to the AAT after the statutory deadline to be reconsidered in some circumstances. Background of the case In DFQ17, the appellant made a protection visa application which was subsequently refused by the Minister. In the refusal letter, the appellant was provided with a right to apply for merits review including the timeframe within which she could validly apply to the AAT for the review. The refusal letter did not specifically set out the deadline in absolute terms (i.e. 13 March 2017), instead it provided a formula using legislative provisions for determining that deadline, such as the date the person was taken to have been notified. The appellant applied to the AAT outside the prescribed timeframe, and consequently the Tribunal found that it had no jurisdiction because the application was made after the deadline. The appealed the AAT’s decision to the Full Court of the Federal Court. Under what circumstances can the “late” AAT applications be reconsidered? The Full Court held that, by using that (complex) formula, as opposed to stating the deadline of 13 March 2017 in absolute terms, the letter did not comply with s 66(2) of the Migration Act 1958. s 66(2) Notification of decision: (2) Notification of a decision to refuse an application for a visa must: (d) if the applicant has a right to have the decision reviewed under Part 5 or 7 – state: (ii) the time in which the application for review may be made. The Court held that the Minister still had not, at law, validly notified the appellant of the refusal. Therefore, the notification was deemed not fully valid which consequently also meant that the merits review application had not been lodged late. As such, the Court held that the Tribunal had jurisdiction to review the Minister’s decision and ordered it to do so. This decision opens gateway to possibly hundreds of Tribunal decisions (in which the Tribunal dismissed “late” applications for merits review) to be affected by jurisdictional error and may well also be overturned in the Federal courts. Any challenges ahead in maintaining the High Court’s decision? If the Minister wishes to appeal the decision, he may bring the appeal on the grounds covering s 412(1)(b) of the Act which states that a “Part 7-reviewable decision must be given to the Tribunal within the prescribed period.” However, if the Minister has not issued a valid notification under s 66(2), the prescribed period will be taken to have not commenced yet, in which case the application submitted to the AAT before the period commences cannot be considered to have been provided to the Tribunal within the prescribed period. As such, the decision of the High Court should withstand, and even if the Minister is to succeed on appeal, it would only change the remedy order that the Tribunal would use i.e. to order the Minister to validly notify the appellant of the refusal decision. In this instance, the appellant would need to make a fresh appeal application to the AAT within the prescribed timeframe for which the date which would be stated on the new notification letter from the Minister. Key Takeaways For the time being, any decision by the AAT that an application for review has been dismissed as a result of “late” application is likely to be affected by jurisdictional error if the refusal letter does not clearly state the time period within which an application for review must be filed. The dismissal letter from the AAT does not have to be recent, it can be challenged even if it had been provided years ago. Getting Assistance If you had previously lodged an application to the AAT which was dismissed by the Tribunal on the basis that it was supposedly “out of time” or “late”, it is worthwhile to seek immigration legal advice as to whether your case would have a reasonable prospect of success. At Migration Centre of Australia, we are well-trained to handle highly complex matters. Book one of our agents for professional advice by calling 02 4626 1002 or email us to book in a time at admin@mckkrs.com.au. We also speak fluent Hindi, Nepalese, Punjabi, Turkish, Tamil, Portuguese and Marathi. If one of these isn’t your language, we can also help you arrange an interpreter.
A Gazette Notice issued on 4 June 2019 by the Attorney-General’s Department advises that there will be increased fees for Administrative Appeals Tribunal and all Court matters. The Annual Federal Courts and Tribunals Fee Increases From 1 July 2019 Notice advises application fees for the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT) will increase from $1,764 to $1,787 from 1 July 2019. Standard fees for Migration Matters in the General Division of the AAT will increase from $920 to $932. There will also be increased fees for filing, document and other services in the High Court, Federal Court and Federal Circuit Court.
The Administrative Appeals Tribunal has posted the following notification on the News Section of their website: The AAT is currently seeking feedback from applicants, representatives and other parties who were involved in a case that was finalised by the AAT between… The AAT is currently seeking feedback from applicants, representatives and other parties who were involved in a case that was finalised by the AAT between 1 December 2018 and 30 March 2019. Those who received the survey now have until 5.00pm (AEST) Thursday 6 June 2019 to provide feedback about their experience with the review process and dealing with the AAT. The survey will give the AAT important information about users’ opinions on the overall review process and their experience when dealing with the AAT. The AAT will use the information to identify areas where we can make improvements. All survey responses will be treated as confidential. Key survey results will be included in our 2018-19 Annual Report.
A recent Administrative Appeals Tribunal decision has received some media attention. In this case, the Tribunal directed that a decision under review be set aside and that the Visa Applicant not be refused a Subclass 155 (Resident Return) visa under s501(1) of the Migration Act 1958, failure of the Character Test. The visa applicant had been charged in March 2015 with sexually based offences involving a child. In summary, the Visa Applicant communicated online and engaged in inappropriate sexual communication with an undercover police officer, whom he believed to be a young child, and with the intention of procuring to engage in sexual activity. The sentences imposed by the Court were at the lower end of the scale of possible sentences. The Visa Applicant was ordered to perform 120 hours of community service within 18 months and was placed on a Register of Sex Offenders for eight years. Based on the evidence provided by the Visa Applicant and independent expert opinion, the Tribunal was of the view that the risk of reoffending is low and the prospects of rehabilitation are good. The risk to the Australian community is therefore considered low. The Tribunal also found that denial of the visa would have a detrimental effect on the visa applicant’s Australian citizen family.
The latest figures released by the Department of Home Affairs indicate the waiting time for Australian Citizenship has dropped by ten per cent. The time period from lodgement to citizenship ceremony (by conferral) has dropped for 75 per cent of applications from 20 months to 18 months. For 90 per cent of applications, though, it remains unchanged at 23 months. The Department has attributed the reduction in waiting time to a range of reforms implemented to streamline the process with the number of people approved as #Australian Citizens between 1 July 2018 and 30 April 2019 is around double the number approved in the same period last year. Despite the drop in the waiting time and an increase in the number of approvals, there were 221,859 applications in the queue as of 26 May 2019. With a high level of focus on the Australian Citizenship program, the number of applications waiting for an outcome is expected to continue to reduce.
The OMARA website advise the following: The Department of Home Affairs office at 188 Collins St, Hobart will be temporarily closed for renovation from Monday 3 June 2019 to Friday 14 June 2019 (inclusive). The Office will reopen on Monday 17 June 2019 for clients attending appointments.
The Canberra Your Future website displays the following update to the #Skilled Migration round. Invitation date: 31 May 2019 Number of Invitations Issued: 442 Matrix score range: All Matrix submitted with 110 to 65 points 60 point matrix submitted on or before 31 January 2019
The Australian Psychological Society (APS) has increased its skills assessment application fees as from 1 June 2019 to 31 May 2020. The assessment fee for APS applicants applying from within Australia has increased from $1,150 to $1,171 (inc GST). The assessment fee for APS applicants applying from outside Australia has increased from $1,045.45 to $1,065 (inc GST).
Engineers Australia’s Migration Services fees will increase on 1 September 2019. A new price table will be effective from 1 September 2019.
The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’ webpage displays the following message: Thursday, 30 May 2019 Statement on appointment as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. It was an honour to be sworn in yesterday by the Governor General as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. Australia’s story is one of immigration. We welcome people to this country based on what they can contribute – regardless of race, religion, or cultural background. We celebrate the success of migrants from all corners of the globe. Migrant success stories define our nation. The small business person who takes a chance, works hard, and employs dozens of Australians. The professional who uses their skills to help grow our economy. The religious leader who provides spiritual guidance to their community. The married couple who make huge sacrifices so that their kids can have opportunities that were not available to them. These are the stories of Australia – in every town and suburb. Our Government will continue to run an orderly, non-discriminatory immigration programme that is focused squarely on our national interests. We will maintain a strong emphasis on the economic benefits of migration, filling gaps in skilled employment to help grow the economy. We will continue to progress initiatives that better match our immigration programmes to the differing needs across our regions. We will implement our reduced cap on permanent migration to take pressure off our cities, while offering more opportunities for skilled migration in regional Australia. We will continue to run a significant humanitarian programme, and ensure that it is always managed in Australia’s national interest. We will manage our temporary migration programmes to maximise their job-creating benefits for Australians. To be an Australian citizen is an immense privilege. In our citizenship activities, we will continue to emphasise the rights – and obligations – that come with being an Australian. We will honour the heritage of our citizenship and ensure that the next generation of citizens are fully cognisant of what it means to be an Australia. I am pleased to take on the additional responsibility of Minister for Migrant Services. These services are about assisting new migrants to become fully integrated into Australian society. We will back migrants who want to work hard, play by the rules and contribute to the growth of our nation. The key outcome we will be focused on in Migrant Services is employment. In integrating into Australian life, there is nothing more important than getting a job. Our multicultural society is one of our greatest strengths as a nation. We will build on it. We will work with community leaders to increase social cohesion, and protect our multicultural heritage. We are the most successful migrant nation in the world, and embedded in that success is our respect for the diverse cultural heritage of Australians. I look forward to progressing on these initiatives as part of the Morrison Government.