Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787

Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787

The Administrative Appeals Tribunal retains the power conferred by s 29(7)-(10) of the AAT Act to extend the time for making an application for review of a Part 5 – reviewable decision under s 347(1)(b) of the Migration Act unless expressly excluded by the Migration Act, which it is not. Both the Tribunal and the Federal Circuit Court erred in failing to recognise this, amounting to jurisdictional error, and thus the Tribunal’s decision was quashed and the matter remitted for reconsideration.

Jurisdiction
Australia
Judgment Date
19 November 2018
Procedural Posture
Migration Appeal / Final Decision on Appeal After Further Submissions
Outcome
Appeal allowed; Tribunal and Federal Circuit Court decisions set aside; matter remitted to Tribunal; costs awarded to appellant.
Legal Topics
['extension of Time for Application for Review' 'jurisdictional Error' 'powers of the Administrative Appeals Tribunal' 'interpretation of Migration Act Provisions']
['migration Law' 'administrative Law'] ['extension of Time for Application for Review' 'jurisdictional Error' 'powers of the Administrative Appeals Tribunal' 'interpretation of Migration Act Provisions']

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Procedural Posture

Migration Appeal / Final Decision on Appeal After Further Submissions

Legal Issues

  1. 1 ['Whether the Administrative Appeals Tribunal has power to extend time for applying for review of a Part 5 – reviewable decision under s 347(1)(b) of the Migration Act 1958 (Cth)' 'Whether the Tribunal and the Federal Circuit Court erred in concluding no such power exists and thus fell into jurisdictional error']

Ratio Decidendi

The Administrative Appeals Tribunal retains the power conferred by s 29(7)-(10) of the AAT Act to extend the time for making an application for review of a Part 5 – reviewable decision under s 347(1)(b) of the Migration Act unless expressly excluded by the Migration Act, which it is not. Both the Tribunal and the Federal Circuit Court erred in failing to recognise this, amounting to jurisdictional error, and thus the Tribunal’s decision was quashed and the matter remitted for reconsideration.

Court Disposition

Appeal allowed; Tribunal and Federal Circuit Court decisions set aside; matter remitted to Tribunal; costs awarded to appellant.

Orders

  • ['The orders of the Federal Circuit Court of Australia made on 12 March 2018 are set aside.' 'The decision of the Administrative Appeals Tribunal made on 24 March 2017 is quashed.' 'The matter is remitted to the Tribunal to determine the constructive application for extension of time for lodging the application for...