Time Limits for Judicial Review

 
 

Here is the exact terms of the time limits for starting a judicial review application.

 

Section 477    Time limits on applications to the Federal Circuit Court

 

[477] (1)      An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

 [477] (2)      The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)      an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)      the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

[477] (3)      In this section:

date of the migration decision means:

(a)      in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 — the date of the written decision under that subsection; or

(b)      in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5 — the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

 (c)      in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7 — the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or

 (ca)    in the case of a migration decision made by the Immigration Assessment Authority — the date of the written statement under subsection 473EA(1); or

(d)      in any other case — the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

 

[477] (4)      For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

[477] (5)      To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision. 

Section 477A      Time limits on applications to the Federal Court

[477A] (1)      An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

[477A] (2)      The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)      an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)      the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

[477A] (3)      In this section:

date of the migration decision has the meaning given by subsection 477(3).

 

[477A] (4)      For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).

[477A] (5)      To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

Note that it is the date of the decision not the date of the letter or email attaching the decision.  Sometimes a letter or email is dated the next working day.

Note also that appeals from the Federal Circuit Court to the Full Federal Court must be lodged within 21 days (NOT 28) but there is power to extend time.

If the  AAT deadline is missed then the Federal Circuit Court has no jurisdiction to review the decision of the original decision maker. The only avenue for review is a direct application to the High Court in its original jurisdiction.

One would not want to do this unless one had an excellent case.

 

Other time limit issues

Other important time limit issues are how long a person is unlawful for. Throughout the regulations, there is often a lee way for being unlawful for 28 days but generally the opening closes after that 28 day period. For example look at criteria 3001 & 3002 which read:

3001. (1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa - 1 September 1994; or

(b)…..; or

(c) if the applicant:

(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(ii) entered Australia unlawfully on or after 1 September 1994;

whichever is the later of:

(iii) the last day when the applicant held a substantive or criminal justice visa; or

(iv) the day when the applicant last entered Australia unlawfully.

 

3002. The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

 

Therefore if you receive instructions from a client for one of these visas you must make sure that the application is lodged prior to 28 days after the person last held a substantive visa[1].

 

Note also the effect of public interest criterion 4014 which applies to many visas:

 

4014.(1) If the applicant is affected by either of the risk factors specified in subclauses (2) and (4):

(a) the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or

(b) the Minister is satisfied that, in the particular case:

(i) compelling circumstances that affect the interests of Australia; or

(ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa within 3 years after the departure.

(2) Subject to subclause (3), a person is affected by a risk factor if the person left Australia after the expiry of a period of grace that applied to the person under section 13 of the Act as in force before 1 Septemb?er 1994, being a period of grace that expired before 1 September 1994.

(3) Subclause (2) does not apply to a person who:

(a) applied for review by the Migration Review Tribunal or the Refugee Review Tribunal; and

(b) left Australia within 7 days of being notified of the decision on the application for review.

(4) Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:

(a) an unlawful non-citizen; or

(b) the holder of a Bridging C (Class WC), Bridging D (Class WD) or Bridging E (Class WE) visa.

(5) Subclause (4) does not to apply to a person if:

(a) the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect or an entry permit held by the person expired, as the case requires; or

(b) a bridging visa held by the person at the time of departure was granted:

(i) within 28 days after a substantive visa held by the person ceased to be in effect or an entry permit held by the person expired, as the case requires; or

(ii) while the person held another bridging visa granted:

(A) while the person held a substantive visa; or

(B) within 28 days after a substantive visa held by the person ceased to be in effect or an entry permit held by the person expired, as the case may be.

 

Again a key issue here is making sure a client does not become illegal for more than 28 days.

 

Other Merit Review Issues

 

Note also the effect of ss. 359, 359B, 359C & 360 of the Migration Act which are as follows:

Section 359      Tribunal may seek information

 

[359] (1)      In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

[359] (2)      Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

[359] (3)      If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

(a)      except where paragraph (b) applies — by one of the methods specified in section 379A; or

(b)      if the invitation is given to a person in immigration detention — by a method prescribed for the purposes of giving documents to such a person.

[359] (4)      If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

 

Section 359AA            Information and invitation given orally by Tribunal while applicant appearing

[359AA]    If an applicant is appearing before the Tribunal because of an invitation under section 360:

(a)      the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)      if the Tribunal does so — the Tribunal must:

(i)      ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)      orally invite the applicant to comment on or respond to the information; and

(iii)      advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)      if the applicant seeks additional time to comment on or respond to the information — adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

 

[The practice point here is – always ask for extra time]

 

Section 359A      Information and invitation given in writing by Tribunal

[359A] (1)      Subject to subsections (2) and (3), the Tribunal must:

(a)      give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)      ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)      invite the applicant to comment on or respond to it.

[359A] (2)      The information and invitation must be given to the applicant:

(a)      except where paragraph (b) applies — by one of the methods specified in section 379A; or

(b)      if the applicant is in immigration detention — by a method prescribed for the purposes of giving documents to such a person.

[359A] (3)      The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA. 

 

 [359A] (4)      This section does not apply to information:

(a)      that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)      that the applicant gave for the purpose of the application for review; or

(ba)      that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)      that is non-disclosable information.

 

Section 359B      Requirements for written invitation etc.

[359B] (1)      If a person is:

(a)      invited in writing under section 359 to give information; or

(b)      invited under section 359A to comment on or respond to information;

the invitation is to specify the way in which the information, or the comments or the response may be given, being the way the Tribunal considers is appropriate in the circumstances.

 

[359B] (2)      If the invitation is to give information, or comments or a response otherwise than at an interview, the information, or the comments or the response are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

Reg 4.17 (4)      If the invitation relates to any other application for review of a decision, the prescribed period for giving the information or comments:

(a)      commences when the person receives the invitation; and

(b)      ends at the end of:

(i)      14 days after the day the person receives the invitation; or

(ii)      if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

[Different periods apply to a person in detention – see Reg 4.17]

 

 [359B] (3)      If the invitation is to give information, or comments or a response at an interview, the interview is to take place:

(a)      at the place specified in the invitation; and

(b)      at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

 

[The writer has never come across an interview situation in the Tribunal context]

 

[359B] (4)      If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

Reg 4.18A (4)      If the invitation relates to any other application for review of a decision, the period by which the Tribunal may extend the prescribed period:

(a)      commences when the person receives notice of the extended period; and

(b)      ends at the end of:

(i)      14 days after the day the person receives notice of the extended period; or

(ii)      if the person agrees, in writing, to a shorter period of not less than 1 working day — the shorter period.

[Different periods apply to a person in detention – see Reg 4.18A]

 

 [359B] (5)      If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

(a)      a later time within that period; or

(b)      a time within that period as extended by the Tribunal for a prescribed further period;

and then the response is to be made at an interview at the new time.

 

Section 359C      Failure to give information, comments or response in response to written invitation

[359C] (1)      If a person:

(a)      is invited in writing under section 359 to give information; and

(b)      does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the information.

 

[359C] (2)      If the applicant:

(a)      is invited under section 359A to comment on or respond to information; and

(b)      does not give the comments or the response before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

 

Section 360.  Tribunal must invite applicant to appear

 

360.     (1)        The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

 

(2)        Subsection (1) does not apply if:

(a)        the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b)        the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)        subsection 359C(1) or (2) applies to the applicant.

 

(3)        If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

 

As is obvious the effect of these provisions can be lethal.  An applicant can lose a right to a hearing by failing to respond.  If a letter is sent to the tribunal responding to an invitation you MUST  ensure that the Tribunal gets that information.  This involves either seeking an acknowledgement of  receipt from the Tribunal or telephoning the Tribunal at least the day before the deadline to confirm that the material has been received.

 

Note also that detention changes all time limits, check these thoroughly in any situation where a person is in detention and notices are received.

 

[1] S. 5 of the Migration Act states that a ‘‘substantive visa’ means a visa other than:

(a) a bridging visa; or

(b) a criminal justice visa; or

(c) an enforcement visa.’

Barbara Davidson