Du and Minister for Immigration and Citizenship (Practice and procedure)

Case •

[2025] ARTA 1041

•

18 July 2025

Du and Minister for Immigration and Citizenship (Practice and procedure) [2025] ARTA 1041 (18 July 2025)

Applicant/s:  Weiming Du

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2024/4217

Tribunal:Deputy President P Britten-Jones

Place:Melbourne

Date:18 July 2025  

Decision:The Tribunal dismisses the application for review pursuant to s 97 of the Administrative Review Tribunal Act 2024 (Cth)

...................[SGD].....................................................

Deputy President P Britten-Jones

Catchwords

INTERLOCUTORY APPLICATION – jurisdiction – whether the terms of an order by the Federal Court remitting the matter for re-hearing precludes the Tribunal re-hearing the question of jurisdiction – applicant lodged his application for review outside of the statutory time limit provided by s 500(6B) of the Migration Act 1958 (Cth) – Tribunal has no power to extend the time for lodging the application for review – Tribunal has no jurisdiction and the application for review is dismissed under s 97 of the Administrative Review Tribunal Act 2024 (Cth)

Legislation

Migration Act 1958 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Cases

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Adams and Tax Agents Board (1976) 1 ALD 251
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167
Re Callychurn and Australian Securities and Investments Commission [2019] AATA 4600
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Re Dunstan and Comcare (2012) 130 ALD 370; [2012] AATA 567
Shi v Migration Agents Registration Authority [2008] HCA 31
Trajkowski v Telstra Corporation Ltd (1998) 81 FCR 459

Virapornsawun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1699

Secondary Materials

Explanatory Memorandum, Administrative Review Tribunal Bill 2023

Statement of Reasons

  1. This is an application that has been remitted from the Federal Court. On 7 February 2025, the Federal Court quashed the decision of the Administrative Appeals Tribunal (AAT) dated 3 September 2024 to dismiss the Applicant’s application for review for want of jurisdiction, pursuant to s 42A(4) of the (then) Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). A writ of mandamus was issued requiring the Tribunal, differently constituted, to determine the Applicant’s application for review dated 24 June 2024 in accordance with law.

  2. Since the filing at the AAT of the application for review on 24 June 2024, the Administrative Review Tribunal (Tribunal) has been established by the Administrative Review Tribunal Act 2024 (Cth) (ART Act) and the AAT has been abolished. Broadly, transitional provisions under the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act) provide that unfinalised proceedings in the AAT must be continued and finalised by the Tribunal in a manner that is efficient and fair. No practical issue arises from the AAT being replaced by the Tribunal, but I note that the 7 February 2025 order of the Federal Court was made pursuant to schedule 16, item 25(2) of the Transitional Act which provides that ‘anything the [Federal Court] could have done in relation to the AAT before the transition time may be done in relation to the ART’. Consequently, the Federal Court had the power to remit the case to the Tribunal because it could have made an order remitting the case to be heard and decided again by the AAT pursuant to s 44(5) of the AAT Act. The remittal power is now found in s 176 of the ART Act which is equivalent to s 44(5) of the AAT Act.[1] Section 176 of the ART Act provides that the Federal Court may remit a matter to be decided again by the Tribunal. The matter to be decided in this case is the application for review brought by the Applicant on 24 June 2024.

    [1] See the Explanatory Memorandum for the Administrative Review Tribunal Bill 2023 clause 176 at [1001].

  3. In accordance with the Federal Court order, the application for review was re-constituted to a different member and heard by me on 16 July 2025. The Respondent contended that the Tribunal should re-hear argument as to jurisdiction. If the Tribunal found there was no jurisdiction, then the Respondent said that the application for review would be dismissed under s 97 of the ART Act. If there was jurisdiction, then the hearing of the substantive matter could proceed. The Applicant was unrepresented but raised a preliminary issue which included a submission that the Tribunal has jurisdiction to hear the matter because it has been ordered to do so by the Federal Court. The Applicant says that to allow the Respondent to raise the jurisdiction issue again would go against what the Federal Court has already decided, and would be unfair and against the legal process.

  4. At the hearing on 16 July 2025, I rejected the Applicant’s submission and indicated I would provide written reasons with respect to the preliminary issue. 

    Preliminary Issue

  5. The Tribunal should re-hear argument as to jurisdiction for the simple reason that the Federal Court’s order requiring the Tribunal to determine the Applicant’s application for review does not preclude the Tribunal from considering whether it has jurisdiction to hear the matter. The scope of the Tribunal’s powers on a remittal are determined by reference to the order made by the remitting Court, but where the order is ambiguous or vague, it is permissible to have regard to extrinsic material including the reasons for judgment.[2] The Applicant contends that the order ‘requiring the [Tribunal], differently constituted, to determine the Applicant’s application for review’ should be interpreted to oblige the Tribunal to proceed with a hearing of the substantive matter and that it is precluded from re-hearing the issue of jurisdiction. I reject that interpretation because a determination of the application for review would include consideration as to jurisdiction. In so far as there might be some ambiguity in the Federal Court’s order, I would say as follows.

    [2] Re Dunstan and Comcare (2012) 130 ALD 370; [2012] AATA 567 at [210].

  6. The issue before the Federal Court on appeal was whether the decision of the AAT was affected by a reasonable apprehension of bias. The order of the Federal Court noted a concession by the Minister that the Tribunal’s decision was affected by jurisdictional error by reason of an ex parte conversation held by the Tribunal with the solicitor representing the Minister immediately following the adjournment of the proceedings before the AAT on 17 July 2024. Further, the Minister conceded that due to this communication the fair-minded lay observer might reasonably apprehend that the AAT might not have brought an impartial and unprejudiced mind to its decision on the application and consequently that the decision of the AAT was affected by jurisdictional error.

  7. It is apparent from the Federal Court orders and notes made on 7 February 2025 that the issue being determined by the AAT was whether the AAT had jurisdiction to hear the application for review. On 3 September 2024, the AAT decided to dismiss the Applicant’s application for review for want of jurisdiction. The AAT’s decision as to jurisdiction has now been quashed but the question of jurisdiction remains a live issue to be determined by the re-constituted Tribunal. Indeed, it could be argued that the matter to be decided again by the Tribunal is the matter of jurisdiction.

  8. As part of the determination of the application for review on the re-hearing, the Tribunal would need to be satisfied that it has jurisdiction. The Tribunal has a responsibility to determine whether it has jurisdiction and has the power to inquire into the existence of facts necessary to found its jurisdiction.[3]

    [3] Re Adams and Tax Agents Board (1976) 1 ALD 251; Trajkowski v Telstra Corporation Ltd (1998) 81 FCR 459 at 468.

  9. The orders of the Federal Court do not preclude the Respondent from raising the question of jurisdiction at the re-hearing of the application for review.  The parties on a rehearing are not limited to matters raised on the appeal.[4]  The Tribunal’s role on review is to consider the matter afresh and to make the correct or preferable decision.[5] It is well established that the Tribunal stands in the shoes of the decision-maker and exercises all the powers and discretions that were available to the original decision-maker for the purposes of reviewing the decision.[6] This would include determining whether the Tribunal has jurisdiction.

    [4] Re Callychurn and Australian Securities and Investments Commission [2019] AATA 4600 at [62] – [65].

    [5] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 (Bowen CJ and Deane J), 599 (Smithers J); Shi v Migration Agents Registration Authority [2008] HCA 31 at [35] (Kirby J), [98] (Hayne and Heydon JJ), [140] - [141] (Kiefel J).

    [6] Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 92 (Davies J); Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 at 175-6.

    The Procedure for Determining Jurisdiction

  10. I informed the parties that the appropriate procedure on this remittal is to hear and determine the question of jurisdiction before proceeding to the substantive matter. The Tribunal had before it all the documents that were before the AAT when it first considered the question of jurisdiction. That material included a statement from the Applicant dated 29 June 2024 and an affidavit from Daljit Singh affirmed on 15 August 2024. I explained to the Applicant that he would be given an opportunity to supplement his written statement with oral evidence in which case he would be cross examined by the Respondent. The Applicant was content to proceed with a hearing on the question of jurisdiction. He confirmed the truth of his written statement and was asked some questions by the Tribunal and the representative of the Respondent.

  11. In addition, there were submissions from the Respondent in the form of a Statement of Position dated 30 August 2024.

  12. At this hearing the parties relied on this material and made further submissions on the question of jurisdiction.

    Consideration of the Question of Jurisdiction

  13. The Respondent contends that the Applicant was served on 11 April 2024 with a copy of the decision made under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act) not to revoke an original decision to cancel his visa under s 501(3A) (the non-revocation decision). If so, then the Applicant had until 20 April 2024 to lodge an application for review because of the operation of s 500(6B) of the Migration Act which provides:

    (6B) If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the ART for a review of the decision must be lodged with the ART within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, sections 18 and 19 of the ART Act do not apply to the application.

  14. The period of time in which an application for review must be lodged pursuant to s 500(6B) is absolute.[7] It is not in dispute that the Applicant lodged his application for review on 24 June 2024. Consequently, the only question for the Tribunal is whether the Applicant was served on or around 11 April 2024.

    [7] See Virapornsawun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1699 at [12].

  15. There is no dispute that at the time when the non-revocation decision was made, the Applicant was in custody in the Geoffrey Pearce Correctional Centre. The Applicant said in his written statement that on 10 April 2024 he was notified of a decision regarding his case but he did not receive a copy of the decision at that time. However, in his oral evidence he said that he was called into the office of a correctional officer who handed him a document letting him know his visa was cancelled. The oral evidence that the Applicant gave to the Tribunal was that “I vaguely remember I received a bundle of documents which were put on the table”. He said he looked at the first page – “I had a glance at the document” – and saw the words “visa cancelled”. He said he was not surprised by the cancellation. He said that the documents were pretty thick and were placed on the table in front of him. He was asked to sign the document and he did so and then left. He said that he did not take the documents with him, but he also said that he might have left the documents somewhere and that he might have put them in the rubbish bin.

  16. Later, in an email dated 19 June 2024, the Applicant wrote to the Department of Home Affairs that he was currently at Villawood Immigration Detention Centre ‘[a]nd I have lost all my records from the past due to moving from prison to other prison and to detention center in a very short notice’.[8] The department provided him with a copy of the non-revocation decision on 21 June 2024,[9] and he then applied to the Tribunal on 24 June 2024.

    [8] Remittal bundle tab 7, 319.

    [9] Ibid 316.

  17. Daljit Singh provided an affidavit on 15 August 2024.[10] He was the senior correctional officer employed at the Geoffrey Pearce Correctional Centre who had the task of serving the Applicant with the non-revocation decision. He explained how emails are received at the Correctional Centre which are then printed out and hand delivered to inmates according to the instructions in the sender’s email. Attached to his affidavit was an email from the Department of Home Affairs dated 10 April 2024 enclosing a copy of the non-revocation decision and requesting that it be provided to the Applicant.[11] Based on the instructions contained in the email, Mr Singh believes he would have printed all the attachments. He recalls that the Applicant was called to attend his office, which he did. Mr Singh then handed the bundle of printed documents to the Applicant who took them from him and left his office.  On 11 April 2024 Mr Singh confirmed by email that the request to serve the Applicant had been completed.[12]

    [10] Ibid tab 5 158-275.

    [11] Ibid 163-4.

    [12] Ibid 274.

  18. There were some inconsistencies in the Applicant’s evidence but generally it can be said that it was consistent with the affidavit from Mr Singh. I am satisfied that the Applicant was served with the non-revocation decision and its attachments on 10 or 11 April 2024. The letter advising of the non-revocation decision is marked “Method of Delivery: By hand” and it advises that an application for merits review must be given to the AAT within nine calendar days.[13] The Applicant admitted that he was handed a document which I find was the letter dated 10 April 2024 advising of the non-revocation decision. Mr Singh deposed in his affidavit that he served the Applicant with the non-revocation decision. There is no doubt that the Applicant was served and that he failed to lodged an application for review within the 9 day period provided by s 500(6B).

    [13] Ibid tab 1, 3.

  19. I find that the application for review was lodged with the Tribunal outside of the statutory time frame and, accordingly, the Tribunal has no jurisdiction because of s 500(6B) of the Migration Act. The Tribunal has no power to extend the time within which an application for review must be lodged. I am satisfied that the non-revocation decision is not reviewable by the Tribunal and that the Applicant’s application for review should be dismissed under s 97 of the ART Act.

    Decision of the Tribunal

  20. The application for review is dismissed pursuant to s 97 of the ART Act.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.

...................[sgd].....................................................

Associate

Dated: 18 July 2025

Date(s) of hearing:  16 July 2025
Applicant’s Representative: Self-represented
Respondent’s Representative: Ms Gabrielle Ho (Clayton Utz)

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Re Dunstan and Comcare [2012] AATA 567
Commissioner of Taxation v Apted [2021] FCAFC 45
Commissioner of Taxation v Apted [2021] FCAFC 45