Paul Cutler's Migration Case Law Blog

It goes without saying that making a valid application is a very important first step in the review process at the AAT. Filing the application on time and paying the application fee are fundamental. However, there are other requirements. Section 29 of the AAT Act sets out the manner of applying for review. Section 29(1) makes it clear than an application: (b) must be accompanied by any prescribed fee; and (c ) …. must contain a statement of the reasons for the application

I have previously blogged about invalid applications where the prescribed fees haven’t been paid.

No statement of reasons

In Mr Miller’s case (a 501 cancellation case) the problems all started when his migration agent used the wrong form and didn’t provide a statement of reasons. The AAT proceeded as on the basis that it had jurisdiction despite the error. However, it affirmed the decision to cancel Mr Miller’s visa. Mr Miller sought judicial review in the Federal Court. Derrington J accepted the Minister’s submission that the AAT did not have jurisdiction (because there was no statement of reasons) and quashed the decision. Mr Miller’s appeal was dismissed by the Full Court.

The High Court decision

Things didn’t go well for the Minister in the High Court (see Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024]) HCA 13). The High Court found that to invalidate the application because no reasons were provided would be to (at [38])  “attribute to the legislature an intention wholly at odds with the express legislative imposition on the Tribunal of the obligation in s 2A(a) and (b) of the AAT Act to pursue the objective of providing a mechanism for review that is accessible, fair, just, economical, informal, and quick. Antithetically to each of those legislative aspirations, invalidity of an application for non-compliance with s 29(1)(c) would result in a mechanism for review which would shut out persons adversely affected by reviewable decisions who might have substantial reasons for seeking review of those decisions but who, through mistake or misfortune or lack of education or linguistic skills, failed to express those reasons in their written application”.

The new ART

For applications in the new ART, the amended s347(2) Migration Act says that the application must: (a) include prescribed information (if any) and be accompanied by the prescribed documents (if any) and prescribed fee (if any)(see (b) and (c )). Meanwhile s34 ART Act says that the application has to be in writing (34(1)), include information specified in practice directions (34(2)). Section 34(3) says that a failure to comply with 34(2) won’t affect the validity of the application.

Clearly there is a lot of administrative law ahead of us when the new ART commences operation.

Photo by Thomas Lefebvre on Unsplash