Paul Cutler's Migration Case Law Blog

How hard can it be to make a valid application to the AAT?

You might be forgiven for thinking that section 29(1)(c) of the AAT Act which says that an application “must contain a statement of the reasons for the application”, is clear.

Despite Mr Miller’s application not containing the reasons (which was agreed), a copy was later provided when the AAT requested it. That request came outside the 9 days timeframe allowed for lodging reviews of character cancellation matters.

The AAT proceeded to review his matter and affirmed the cancellation decision.

Miller appealed to the Federal Court. The Minister took the point that the AAT lacked jurisdiction because of non-compliance with s 29(1)(c) but accepted that there would otherwise be a jurisdictional error in the AAT decision. Derrington J found that 29(1)(c) was mandatory and dismissed the appeal.

In the Full Federal Court, Miller argued (for the first time) that writing the words “non-revocation of a visa cancellation” on the application form (he had used the incorrect form) was a sufficient statement of reasons. His appeal was dismissed, but not before the Full Court had considered:

• Project Blue Sky – whether “must” is mandatory will depend on statutory context;
• the other sub-sections of s29(1), finding that (a) (application in writing) and (d) (decision document shall be lodged in prescribed time) were mandatory , but that (b) payment of the fee, was not. The latter is because of sections 69C(1) and 70 which deal with timeframes for what happens if fees aren’t paid;
• s29(7)-(9) in relation to extensions of time; and
• s29AB being the AAT’s power to request amendment of the application.

In short, the Full Court agreed that 29(1)(c) was mandatory.

I come back to where this story started. Although mistakes can be made (apparently), it’s really not that hard to follow section 29 and make a valid application. You can read the Full Court decision here.

Creative commons acknowledgment for the photograph.