Late AAT Applications Not Necessarily Affected by Jurisdictional Error Under DFQ17 Decision

Out of time merits review applications to the AAT may not necessarily be recovered by jurisdictional error although it does not clearly state the time period within which the application for review must be filed.  Generally, 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.

Decision of the Full Court in DFQ17

In A (name redacted), reference was made to the decision of the Full Court in DFQ17, whereby Perram J concluded that when s 66(2) uses the word ‘state’, it means that the notification must set out the information in each of the subsections in a way which is not only complete but clear as well.  Perram J considered the information as to the time within which the relevant application had to be made in that case was “…piecemeal, entirely obscure and essentially incomprehensible”.

The relevant legal provisions for the notification of decision is as follows:

Section 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 or section 500--state:

                             (ii)  the time in which the application for review may be made; and

Although the court in the present case is bound by DFQ17, the Minister submitted that the Full Court’s decision is distinguishable.  In this present case, the dates within which the applicant is entitled to apply to the AAT for a merits review were located on page 1 and page 3 of the Department’s letter. 

While this case involves reading information spread out over 3 pages of the letter to calculate the time limitation to apply for a merits review, the Court held that the letter must be read as a whole and the fact that these statements appear on different pages does not mean that the relevant information is not clearly conveyed as “a person exercising a reasonable amount of care when reading the letter would understand it to convey that an application for review had to be lodged within 21 calendar days after the date the letter was emailed”.

Hence, not all applications to the AAT dismissed as a result of “late” application are affected by jurisdictional error although the refusal letter appears not to clearly state the time period which the merits review application must be filed if a person exercising “reasonable care” when reading the letter would understand the time limitation. 

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