SZVXH v Minister for Immigration

The applicant, SZVXH, sought an extension of time to file an application for judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The core dispute concerned whether the AAT had erred in finding itself *functus officio* when it received the applicant's request to re-open his case and provide a further hearing. The applicant had failed to attend a hearing on three separate occasions. The court was required to determine whether the AAT's decision, made on 19 September 2012, was beyond recall at the time it received the applicant's request, and whether the AAT had unreasonably exercised its discretion under section 426A of the *Migration Act 1958* (Cth) by proceeding without allowing the applicant to appear. The court also considered whether the applicant's explanation for a 26-month delay in seeking judicial review was satisfactory.

The court's reasoning focused on the principle that a tribunal's decision is not beyond recall until an "overt act" has been taken that places the decision beyond the tribunal's province and control. Drawing on previous authority, the court noted that this typically involves the oral pronouncement or other notification of the decision. The court found that while an electronic communication was sent to the Department at 1:00 pm on 19 September 2012, there was insufficient evidence to establish its purpose or that it constituted an act placing the decision beyond recall. Specifically, the court lacked evidence regarding the tribunal's internal processes, the relationship with the Department concerning electronic communications, and who had access to the information recorded in the ICSE system. Without this evidence, the court was not satisfied that the tribunal's decision was beyond recall at that time, as the written statement of reasons remained within the tribunal's control.

Consequently, the court found that the applicant's request to re-open the case was made before the AAT's decision was beyond recall. The court therefore granted the extension of time to seek judicial review of the AAT's decision dated 17 September 2012.