Brown v Minister for Home Affairs (No.2)

In the case of Brown v Minister for Home Affairs (No.2), the appellant, Mr Brown, challenged the decision of the Administrative Appeals Tribunal (the “Tribunal”) to refuse his application for an extension of time to lodge an application for review of the Minister’s decision to refuse the grant of a Partner (Migrant) (Class BC) visa under the Migration Act 1958 (Cth). The Federal Circuit Court of Australia had previously found that the Tribunal had no power to extend the time for making such an application and set aside the Tribunal’s decision. The Minister subsequently filed further submissions, prompting the Court to reconsider its earlier decision. The main legal issue before the court was whether the Tribunal had the power to extend the time for the making of an application for review of a Part 5 reviewable decision under s 347(1)(b) of the Migration Act.

The court held that the Tribunal had the power to extend the time for the making of an application for review of a Part 5 reviewable decision under s 347(1)(b) of the Migration Act. The court found that s 24Z of the Administrative Appeals Tribunal Act 1975 (Cth) did not preclude the Tribunal from exercising its general power to extend time in relation to proceedings in the Migration and Review Division of the Tribunal. The court held that s 25(6) of the AAT Act preserved the operation of s 29 of the AAT Act in relation to a proceeding in the Migration and Refugee Division of the Tribunal, and thus the Migration Act could add to or exclude or modify the operation of s 29 and its subsections. The court also held that the Tribunal had fallen into error by concluding that it had no power to extend the time for the making of an application under s 347(1)(b) of the Migration Act.

Accordingly, the court set aside the orders of the Federal Circuit Court of Australia and quashed the decision of the Tribunal. The matter was remitted to the Tribunal to determine the constructive application made by the appellant to the Tribunal for an extension of time for the lodging of his application for review of the Minister’s decision. The Minister was ordered to pay the appellant’s costs of and incidental to the proceedings in the Federal Circuit Court of Australia and the appeal to this Court. The orders and reasons for judgment in support of these orders were made and published from Chambers.