Brown v Minister for Home Affairs [2018] FCA 1643

Brown v Minister for Home Affairs [2018] FCA 1643

The general power conferred on the Administrative Appeals Tribunal by s 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 (Cth) to extend time applies to applications for review of a Part 5-reviewable decision under s 347(1)(b)(i) of the Migration Act 1958 (Cth), because the Migration Act does not expressly or by necessary implication exclude that power. The Federal Circuit Court therefore erred in holding that there was no power to extend time, and the AAT fell into jurisdictional error by concluding that it had no jurisdiction and no discretion to accept the application out of time.

Jurisdiction
Australia
Judgment Date
31 October 2018
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia / Appeal; Time to File Notice of Appeal Extended and Further Submissions Directed Before Final Determination
Outcome
The time for filing the notice of appeal was extended; further submissions were directed from the first respondent on the AAT's power to extend time; costs were reserved.
Legal Topics
['part 5 Reviewable Decision' 'administrative Appeals Tribunal Power to Extend Time' 'jurisdictional Error' 'partner Visa Refusal' 'notification and Time Limits for Review']
['migration' 'administrative Law'] ['part 5 Reviewable Decision' 'administrative Appeals Tribunal Power to Extend Time' 'jurisdictional Error' 'partner Visa Refusal' 'notification and Time Limits for Review']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia / Appeal; Time to File Notice of Appeal Extended and Further Submissions Directed Before Final Determination

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred in concluding that the Administrative Appeals Tribunal had no power to extend time for an application for review of a Part 5-reviewable decision under s 347(1)(b) of the Migration Act 1958 (Cth).' "Whether the Administrative Appeals Tribunal fell into jurisdictional error by concluding that it had no power to extend time for the appellant's application for review." 'Whether s 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 (Cth) apply to an application for review under s 347(1)(b) of the Migration Act 1958 (Cth).']

Ratio Decidendi

The general power conferred on the Administrative Appeals Tribunal by s 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 (Cth) to extend time applies to applications for review of a Part 5-reviewable decision under s 347(1)(b)(i) of the Migration Act 1958 (Cth), because the Migration Act does not expressly or by necessary implication exclude that power. The Federal Circuit Court therefore erred in holding that there was no power to extend time, and the AAT fell into jurisdictional error by concluding that it had no jurisdiction and no discretion to accept the application out of time.

Court Disposition

The time for filing the notice of appeal was extended; further submissions were directed from the first respondent on the AAT's power to extend time; costs were reserved.

Orders

  • ['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.' 'The first respondent file and serve written submissions on the question addressed at [38] to [68] of the reasons for...