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Judicial ReviewVisa refusal AAT

Putting cases in the ‘deep freeze’: Okoh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 209

By 6 February, 2024February 26th, 2024No Comments8 min read

granting an adjournment

The Administrative Appeals Tribunal (AAT) can and should adjourn applications where the outcome is dependent on some related process being undertaken in accordance with the Migration Act.

Brief summary

In this case, a family of secondary applicants for a permanent visa applied to the AAT for review of a refusal decision after the primary applicant’s application was automatically refused under s 501F(2) of the Migration Act 1958 following the cancellation of his bridging visa under s 501(3A).

The secondary applicants asked the AAT to adjourn the hearing of their application until after the primary applicant’s request for revocation under s 501CA was determined, noting that unless the primary applicant’s cancellation decision was revoked their application for review was bound to fail. The AAT refused to adjourn the application for review until the primary applicant’s revocation request was determined and made a decision affirming the refusal of the secondary applicants’ visa applications.

On application for judicial review, the Federal Circuit and Family Court of Australia (FCFCOA) determined that the AAT’s failure to grant an adjournment until the primary applicant’s request for revocation was decided was legally unreasonable, as the outcome of the application to the AAT hinged solely on the outcome of the request for revocation. The FCFCOA quashed the AAT’s decision and remitted the application to the Tribunal.


A family of non-citizens lodged combined applications for permanent visas while they were in Australia, with the father being the primary applicant. The family members were granted bridging visas to regularise their presence in Australia while their applications for permanent visas were determined.

Before their applications were determined, the primary applicant was convicted of a serious criminal offence and his bridging visa was mandatorily cancelled under s 501(3A) of the Migration Act. In consequence, his application for a permanent visa was automatically refused under s 501F(2) of the Act. The primary applicant requested revocation of the cancellation of his visa in accordance with s 501CA of the Act.

Subsequently, the Department of Home Affairs made a decision refusing all of the secondary applicant’s visa applications on the basis that no applicant could satisfy the primary criteria for the grant of the permanent visa (the primary applicant’s visa applicant having been refused by operation of law).

The secondary applicants applied to the AAT for review of the refusal decision. After the matter was set down for hearing, the secondary applicants asked that their matter be adjourned until after the primary applicant’s request for revocation was determined, noting that their application was destined to fail unless the cancellation of the primary applicant’s bridging visa was revoked.

The AAT granted two short adjournments before refusing any further adjournment and determining to affirm the Department’s refusal decisions. In refusing the request for further adjournment, the AAT found that the secondary applicants were seeking ‘limitless adjournments’ and that such adjournments were inconsistent with the Tribunal’s purpose of providing a review mechanism ‘that is to be fair, just, economical, informal and quick.’

Ground of review

The secondary applicants applied to the FCFCA for judicial review of the AAT’s decision on the basis that the Tribunal’s refusal to adjourn the application was legally unreasonable. The judicial review applicants argued that the AAT’s refusal to grant a further adjournment was unreasonable because:

  • the application to the AAT was destined to fail until and unless the cancellation of the primary applicant’s bridging visa was revoked; and
  • the inter-operation of ss 501F(4) – which automatically sets aside automatic refusal if the underlying cancellation decision is revoked – and the Schedule 2 criteria which the secondary applicants were unable to satisfy, demanded that the revocation process prescribed by s 501CA(4) be finalised before the secondary applicant’s visa applications be determined.

Court’s decision

The Court found that the AAT’s decision not to grant any further adjournment was legally unreasonable, such that its decision to affirm the refusal of the secondary applicants’ visa applications was affected by jurisdictional error.

In reaching this conclusion, the Court noted that it was not disputed that the inter-operation of certain provisions in the Migration Act meant that the outcome of the primary applicant’s request for revocation under s 501CA(4) would be determinative of the secondary applicants’ application to the AAT. The Court also accepted that while there was no prescribed timeframe within which a request for revocation had to be determined, the Minister was under a statutorily implied obligation to make a decision within a ‘reasonable time’ having regard to the nature and complexities of the decision.

Having made these findings, the Court found that the AAT mischaracterised the nature of the adjournment sought by the secondary applicants. The secondary applicants were not seeking ‘limitless’ adjournments, as the length of the adjournments were limited to the length of time it would take for the primary applicant’s revocation to be determined, and the Minister was under an obligation to make that decision within a particular period of time, being a ‘reasonable time.’

While the Court accepted the Minister’s submission that what the applicants sought could be described as the Tribunal putting their case into ‘deep freeze’, the Court found that they were not seeking for their case to be put into deep freeze forever.

What does this case illustrate?

In a narrow sense, this case illustrates that it may be unreasonable for the AAT to refuse an adjournment that is sought to allow another process prescribed by the Migration Act, and which will be determinative of the application, to take place, even where there is no prescribed timeframe for that other process to take place (beyond the general, implied obligation to make a decision within a ‘reasonable time’).

More generally, this case shows that the Migration Act 1958, which creates the entire framework for Australia’s migration system, is a very complex piece of legislation. In many cases, the outcome of one process prescribed by the Migration Act (e.g., the determination of the secondary applicants’ visa applications) depends on the outcome of some separate process (e.g., the primary applicant’s request for revocation). The Migration Act provides no direct guidance on the ‘order of operations’ where multiple, related processes have to be determined by different decision-makers working according to their own, often self-imposed timeframes.

In determining how these kinds of complex matters should be resolved, it is necessary to look at the structure of the Migration Act as a whole and the operation of individual provisions specifically. Further, individual decision-makers may take an overly narrow view of the matter before them and the issues relevant to their determination or, as in this case, find that their obligation to make decisions in an efficient manner over-rides the obligation to give effect to the whole of the migration scheme put in place by the Migration Act.

Hannan Tew – About Us

At Hannan Tew Lawyers we have a dedicated judicial review team that is experienced in making sure decisions made and actions taken by the Minister for Immigration, an immigration officer or the AAT are valid and lawful.

We offer a free, 20 minute judicial review consultation with our Special Counsel Joel McComber, who has extensive experience acting in judicial review applications of migration decisions before the Circuit Court, Federal Court and even High Court of Australia. Joel even acted for the applicants in this case! At this consultation Joel will provide you with advice about the limitation period applying to your case, the Court that has the power to hear and determine your case, and the process of applying for judicial review.

Unfortunately we cannot provide you with advice regarding potential grounds of review or your prospects of success at a free initial consultation, but we do offer an assessment of judicial review prospects for a fixed fee of $2,000 (GST exclusive).

This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up to date information.
Joel McComber

Author Joel McComber

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