Merits review of character cancellation decisions in the AAT run to a strict case management timetable which is set out in section 500 Migration Act. It is a requirement that the tribunal give a decision within 84 days of the commencement of proceedings (500(6L)(2)). Anyone who has done any litigation would realise that is really fast tracked case management. It is not very much time to have a directions hearing, prepare evidence on both sides, issue requests for documents and to conduct a hearing and give a decision.
One of the “traps” is section 500(6H) which basically says the AAT can’t consider any oral evidence unless a written statement of the evidence is provided 2 days prior to the hearing. The interpretation of 500(6H) was the subject of a Full Court decision (yesterday) – Minister for Immigration v DOM19 [2022] FCAFC 21. The decision makes it clear that unless there is a written statement of the witness’s evidence no oral testimony will be allowed. The Court also notes that there is a “work around” in the sense that the AAT could adjourn for 2 days to regularise the position. I have had first hand experience of this happening in one of my matters.
While that is true, the 84 days continues to count down. There is already law to the effect that it is possible for the AAT to deliver a decision within 84 days and then provide reasons later (see Khalil v Minister for Home Affairs (2019) 271 FCR 326). The problem with that of course is that erodes the time available to consider any appeal to the Federal Court (which runs from the date of the decision). There is provision to appeal out of time, and hopefully the late delivery of AAT reasons would be a sufficient justification for being late. Needless to say its difficult to prepare appeal grounds when there are no reasons published.
When this happens it only gets worse for Applicants!
Creative commons acknowledgment for the photograph.
