AZF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This matter concerned an application by AZF21, a Nigerian national, for an order under s 477(2) of the *Migration Act 1958* (Cth) and the merits of his application for review of a decision by the Minister to cancel his Humanitarian visa. The applicant's visa was cancelled on 18 April 2019 on the ground that the Minister was not satisfied as to the visa holder's identity. The delegate provided the applicant with a notification letter and a record of decision. The notification letter stated the applicant could apply for merits review but failed to specify whether the decision was reviewable under Part 5 or 7 of the Act, or provide details regarding the review process as required by s 127(2) of the Act. Consequently, the Administrative Appeals Tribunal (the Tribunal) later found it did not have jurisdiction to hear the applicant's review application, as it was lodged outside the prescribed time limit.

The central legal issue before the court was whether it was necessary in the interests of the administration of justice to make an order under s 477(2) of the Act to allow the applicant to proceed with his review application, notwithstanding the delay and the defect in the notification letter. The court was required to determine the legal significance of the defect in the notification letter, specifically whether it rendered the Tribunal's finding of no jurisdiction unlawful, and how this impacted the assessment of whether an order under s 477(2) was warranted. The Minister argued that the defect was technical, caused no practical injustice, and that the applicant's delay and lack of adequate explanation weighed against granting relief.

Manousaridis J held that the Minister's concession that the notification letter did not comply with s 127(2) of the Act was binding. The court rejected the Minister's submission that the merits of the ground of application should be discounted because it was "technical." The court found that the characterisation of a ground as "technical" was irrelevant to determining whether a decision was made according to law. Therefore, for the purpose of considering an order under s 477(2), the applicant was bound to succeed on his proposed ground of application. The court was satisfied that it was necessary in the interests of the administration of justice to make an order under s 477(2), despite the substantial and largely unexplained delay by the applicant. This was because, on the current state of the law, the Tribunal's decision that it lacked jurisdiction was unlawful, a position that became clear following the Full Federal Court's decision in *Parata*. The court found no prejudice to the Minister or the public, nor any evidence of bad faith by the applicant.

The court ordered that an order be made under s 477(2) of the *Migration Act 1958* (Cth).