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Administrative Appeals Tribunal of Australia |
Last Updated: 6 February 2003
CATCHWORDS -JURISDICTION - immigration - whether visa applicant may seek review of the decision refusing to grant him a regional sponsored migration scheme visa on his own behalf - whether the sponsor was required to lodge the application for review of the decision - whether the applicant acted as the sponsor's agent - Tribunal has no jurisdiction.
Migration Act 1958 ss. 5, 7, 7A, 80, 338, 339, 347, 348, 500, 501 and 501G
Migration Regulations 1994 s. 31; Schedule 2; criterion 119.2, 119.211 and 119.411
Administrative Appeals Tribunal Act 1975 ss. 25, 27 and 29
Acts Interpretation Act 1901 s. 17
Lamshed v Lake (1958) 99 CLR 132
Spratt v Hermes [1966] ALR 597
Project Blue Sky Inc and Others v Australian Broadcasting Commission [1998] HCA 28, 194 CLR 355
Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2002/1272
GENERAL ADMINISTRATIVE DIVISION )
Re MICHEL ASSI
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
Tribunal: Miss S A Forgie (Deputy President)
Date: 5 February, 2003
Place: Melbourne
Decision: The Tribunal does not have jurisdiction to consider Mr Assi's application.
S A FORGIE
Deputy President
On 21 November, 2002, Mr Assi applied for review of a decision of a delegate of the respondent, the Minister for Immigration, Multicultural and Indigenous Affairs ("the Minister") dated 19 November, 2002 and given to Mr Assi on 20 November, 2002. That decision was to refuse the grant of a subclass 119 Regional Sponsored Migration Scheme visa ("subclass 119 visa") under s. 501 of the Migration Act 1958 ("the Act") on the basis that Mr Assi had not passed the character test. At the hearing, Mr Assi was represented by his solicitor, Mr Gerkens, and the Minister by his solicitor, Ms Greaves. Regard was had to the documents lodged pursuant to s. 501G of the Act ("G documents").
THE ISSUE
2. Before the substantive hearing began, there was an initial question as to whether Mr Assi was entitled to lodge his application under the Act. Resolution of that issue turned on whether Mr Assi was a person entitled to seek review of the decision under either Part 5 or Part 7 of the Act if the decision had been made on another ground within the meaning of s. 500(3).. At the hearing, I made a decision that Mr Assi was not such a person and was not entitled to lodge an application for review of the decision of the delegate under s. 501.. Consequently, I found that I did not have jurisdiction to review the decision. As s. 500(6B) of the Act provides that s. 29(7) of the Administrative Appeals Tribunal Act 1975 ("AAT Act")does not apply where a person is in the migration zone, it must be lodged within nine days after the day on which Mr Assi was notified in accordance with s. 501G(1) and I am unable to extend that nine day time limit.
LEGISLATIVE FRAMEWORK
3. Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations.
4. Among the criteria that are prescribed in the case of a subclass 119 visa are primary criteria, secondary criteria, circumstances applicable to the grant of the visa, when the visa is in effect, conditions and the way of giving evidence. The primary criteria must be satisfied by at least one member of a family unit. The other members of that family unit need only satisfy the secondary criteria (criterion 119.2).
5. Of the primary criteria, only one is relevant in this case and that is criterion 119.211(1) which provides that the criterion to be satisfied at the time of the application is that "The applicant has been nominated by an employer for an appointment in the business of that employer". The circumstances applicable to the grant of the visa are also relevant and they provide that:
"The applicant must be outside Australia when the visa is granted.
Note The second instalment of the visa application charge must be paid before the visa can be granted." (criterion 119.411)
Procedures to be followed once the Minister or his delegate makes a decision
6. Section 501G sets out the procedures that the Minister must follow if he makes a decision under, among others, s. 501(1) as he has done in this case. He must give the person whose visa he has refused or cancelled a written notice setting out the decision, specifying the provision under which the decision is made and setting out the reasons (other than non-disclosable information) for the decision (ss. 501G(1)(a) to (e)). Non-disclosable information means information that, in the Minister's opinion, would be contrary to the national interest for one of the reasons specified in s. 5(1).. There is no such information in this case. The Minister is also required to advise the person of his or her right to have the decision reviewed by the Tribunal and, where the person is in the migration zone, to advise of the effect of ss. 500(6A) to (6L) of the Act. As Mr Assi is in the migration zone, the notice that the Minister gives must also:
"be accompanied by 2 copies of every document, or part of a document, that:
(d) is in the delegate's possession or under the delegate's control; and
(e) was relevant to the making of the decision; and
(f) does not contain non-disclosable information." (s. 501G(2))
7. There was no dispute between the parties that the Minister did not comply with the requirements of s. 501G in relation to the decision he made refusing Mr Assi's visa. The delegate did not send the G documents, or the documents from which the G documents were prepared, to the Minister's solicitors until some time after the delegate's decision was given to Mr Assi. They were ultimately filed on 20 December, 2002, some one month after he was given the decision.
Who may apply for review of a decision to refuse a visa?
8. Section 25 of the AAT Act is fundamental to any consideration of the Tribunal's jurisdiction to review a decision. It begins with the general statement that:
"An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment." (s. 25(1)(a))
Section 25(4) provides the necessary corollary to this sub-section when it provides that the "... Tribunal has power to review any decision in respect of which application is made to it under any enactment." The general powers of the Tribunal are found in other provisions of the AAT Act.
9. The remaining ten sub-sections of s. 25 go on to refine the general proposition made in s. 25(1) and to provide that an enactment may modify the operation of any particular provision of the AAT Act. Of particular interest in this case is s. 25(3) which provides:
"Where an enactment makes provision in accordance with subsection (1), that enactment;
(a) shall specify the person or persons to whose decisions the provision applies;
(b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c) may specify conditions subject to which applications may be made."
10. Section 27(1) of the AAT Act provides that:
"Where this Act or any other enactment ... provides that an application may be made to the Tribunal for review of a decision, the application may be made by or on behalf of any person or persons ... whose interests are affected by the decision."
Although the words of s. 27 appear to entitle any person to make an application if his or her interests are affected by a decision their breadth is qualified by their opening words. Those words draw attention to the enactment providing that an application may be made for review of a decision. It is only if that enactment provides that an application may be made by a person whose interests are affected by the decision. Section 27 is, therefore, consistent with s. 25 in that both permit the Tribunal's power of review to be defined and circumscribed by the enactment making provision for that review.
11. The effect of ss. 25 and 27 is that regard must be had to the terms of the enactment to decide whether or not the Tribunal has been given jurisdiction. In this case, regard must be had to s. 500 of the Act because that deals with review by the Tribunal. Section 500(1)(b) provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s. 501. Section 500(3) narrows those who may make an application by providing that, in so far as it is relevant:
"A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) ... unless the person would be entitled to seek review of the decision under Part 5 or 7 if the decision had been made on another ground".
A decision made under s. 501 is not reviewable under either Part 5 or Part 7.
12. Part 5 is concerned with review of decisions by the Migration Review Tribunal ("MRT") and Part 7 with review of protection visa decisions by the Refugee Review Tribunal ("RRT"). As a subclass 119 visa is not a protection visa, I am concerned with Part 5. The structure of that part is a little unusual in the sense that it does not specifically provide that an application may be made to the MRT for review of certain decisions. Instead, it sets out in s. 338 those decisions that are MRT-reviewable decisions and then goes on to provide in s. 348 the circumstances in which the MRT must review MRT-reviewable decisions. As the MRT is a tribunal created by statute, it necessarily follows that its jurisdiction is circumscribed by statute. As it is only given jurisdiction to review the decisions that it must and not any other decisions, its jurisdiction is limited to reviewing MRT-reviewable decisions.
13. What amounts to an MRT-reviewable decision is the subject of s. 338 of the Act. In general terms, a decision is an MRT-reviewable decision if s. 338 provides that it is and if the Minister has not issued a conclusive certificate under s. 339, the decision is not an RRT-reviewable decision and the decision is not to refuse or cancel a temporary safe haven visa (s. 338(1)). The two subsections of s. 338 that were identified by the parties as relevant and that I consider to be those that are relevant are ss. 338(5) and (7A).
14. Section 338(5) provides:
"A decision to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:
(a) the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
(b) the non-citizen, as required by a criterion for the grant of a visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) a company that operates in the migration zone; or
(iii) a partnership that operates in the migration zone; or
(iv) the holder of a permanent visa; or
(v) a New Zealand citizen who holds a special category visa."
15. A "non-citizen" is defined to mean a person who is not an Australian citizen (s. 5(1)) and the expression "migration zone" to mean:
"... the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port." (s. 5(1))
The word "State" is not defined but the word "Territory" is defined to mean an internal Territory or an external Territory to which the Act extends (Act, s. 5(1)).
16. Section 338(7A) provides:
"A decision to refuse to grant a non-citizen a permanent visa is an MRT-reviewable decision if:
(a) the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and
(b) the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone."
17. Section 347 is concerned with those who may make an application for review of an MRT-reviewable decision. In so far as an MRT-reviewable decision of the type referred to in s. 338(5) is concerned, an application for review may only be made by the sponsor or nominator referred to in that subsection. This is the effect of s. 347(2). In so far as s. 338(7A) is concerned, an application may only be made by the non-citizen who is the subject of that decision. That is the effect of s. 347(2).
CONSIDERATION
18. There is no question that Mr Assi is not an Australian citizen and so a non-citizen within the meaning of the Act. He has lodged an application seeking review of a decision under s. 501.. In order to decide whether his application has been properly made and so whether I have jurisdiction to hear it, I must consider whether he would have been entitled to seek review of the decision under Part 5 of the Act had it been made on another ground. Only two sections in that Part are relevant.
19. Beginning with s. 338(5), that provision requires me to look first to the circumstances in which a subclass 119 visa could be granted and those in which it could not in order to ascertain whether it could not be granted while Mr Assi is in the migration zone. As I have noted above, criterion 119.411 provides that the applicant for that visa must be outside Australia when it is granted. In view of that criterion, it follows that a subclass 119 visa can not be granted while Mr Assi is in Australia. Does this mean that Mr Assi could not be granted the visa while Mr Assi was "in the migration zone" within the meaning of s. 338(5) of the Act? That depends upon the meaning of "Australia" as used in the Regulations and the meaning of "in the migration zone" as used in the Act.
20. The word "Australia" is not defined as such in either the Act or in the Regulations but is defined in s. 17 of the Acts Interpretation Act 1901 ("AI Act"), unless the contrary intention appears, to mean:
" `Australia' or `the Commonwealth' means the Commonwealth of Australia and, when used in a geographical sense, includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory".
The "Commonwealth of Australia" is that established under the Commonwealth of Australia Constitution Act ("the Constitution"). It includes that States and the Territories (Lamshed v Lake (1958) 99 CLR 132 at 148 per Dixon CJ and Spratt v Hermes [1966] ALR 597 per Barwick CJ at 604). The effect of s. 17(a) of the AI Act, however, is that, when the words "the Commonwealth" are used in a geographical sense, the external territories other than the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands are not included.
21. The definition in s. 17 only applies if the Act does not indicate a contrary intention. In considering whether there is a contrary indication, I have considered s. 7 of the Act, which provides:
"(1) In this section, prescribed Territory means the Coral Seas Islands Territory, the Territory of Cocos (Keeling) Islands, the Territory of Christmas Island and the Territory of Ashmore and Cartier Islands.
(2) This Act extends to a prescribed Territory.
(3) Subject to this Act, prescribed Territory:
(a) shall be deemed to be part of Australia for the purposes of this Act; and
(b) shall be deemed not to be a place outside Australia." (Act, s. 7)
That section indicates that the word "Australia" is intended to have an extended meaning and to include, in addition to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, the Coral Sea Islands Territory and the Territory of Ashmore and Cartier Islands.
22. What of other sections in the Act? The expression "leave Australia" is defined in s. 5(1) of the Act. In relation to a person it means, subject to s. 80, which is concerned with leaving without going to another country, "leave the migration zone". The expression "remain in Australia" means "remain in the migration zone".. I have set out the definition of "migration zone" above (see paragraph 15). Having regard to that definition and to s. 7 of the Act, it would follow that "Australia" in those expressions would mean the geographical area consisting of the States, internal Territories and the prescribed Territories (i.e. the Territory of Christmas Island, Territory of Cocos (Keeling) Islands, the Coral Sea Islands Territory and the Territory of Ashmore and Cartier Islands) as well as the Australian resource installations and Australian sea installations. It seems to me that this is the appropriate meaning to adopt in the Act and that the meaning given in s. 17(a) of the AI Act has been displaced. For the reasons I have given previously, that meaning is also the meaning that should be adopted in interpreting criterion 119.411 of the Regulations.
23. It follows that if a person is in Australia, he or she is also in the migration zone and vice versa. As the visa could not be granted when Mr Assi was in Australia, the visa could not be granted while he was in the migration zone within the meaning of s. 338(5)(a).
24. That brings me to s. 338(5)(b). Pursuant to criterion 119.211, Mr Assi had to be nominated by an employer for an appointment in the business of that employer. I find that Mr Assi had been nominated by Ruffell Family Jewellers for an appointment as an Antique Restoration/Manufacturer (Jeweller) in its business. This was as required by criterion 119.211.. Ruffell Family Jewellers is an employer and so satisfied that criterion. There was no dispute between the parties, and I find, that it is a partnership operating in the migration zone.
25. It follows that the requirements of s. 338(5) are met and so the decision to refuse to grant a subclass 119 visa is an MRT-reviewable decision within the meaning of that subsection. Applying s. 347(2), only the nominator may make an application for review to the MRT. Consequently, only the nominator may make an application to this Tribunal. The nominator is Ruffell Family Jewellers but it was not the sponsor who applied. Rather, Mr Assi applied in his own name.
26. Mr Gerkens submitted that Mr Assi's applying in his own name is not fatal to the validity of his application. He submitted that the sponsor is, procedurally, the agent of Mr Assi and that Mr Assi is, in reality, the person seeking review. I do not think that this submission assists Mr Assi. Even if Mr Gerkens is correct, s. 347(2)(b) requires that the application be made in the name of the sponsor and not, as happened here, in the name of Mr Assi. I have considered further whether Mr Assi can be considered to be the agent of Ruffell Family Jewellers but there is nothing in the application to suggest that he was making it with actual authority and there is nothing in it to suggest that he was doing so with implied authority. It is clearly an application lodged on his own behalf and promoting, understandably, his own interests rather than those of Ruffell Family Jewellers.
27. Mr Gerkens also submitted that the decision was an MRT-reviewable decision within the meaning of s. 338(7A). If it is, I agree with Mr Gerken's further submission that Mr Assi is a person who was entitled to apply to the MRT for review of such a decision under s. 347(2)(a). By virtue of s. 500(3), he would have been the person who was entitled to apply for review of the decision made under s. 501.
28. I do not consider that the decision was an MRT-reviewable decision had it been made on another ground. An essential requirement of s. 338(7A) is that the visa could be granted while Mr Assi was either in or outside the migration zone. The clear requirement of criterion 119.411 is that he had to be outside Australia when it was granted. There was no room for him to be either in the migration zone or outside it. Therefore s. 338(7A) is not applicable to Mr Assi's circumstances.
29. Mr Gerkens submitted, s. 500(3) of the Act, which purports to prescribe those who may make an application, should not be interpreted so as to interfere with substantive rights. This submission raises issues such as those considered in cases such as in Project Blue Sky Inc and Others v Australian Broadcasting Commission [1998] HCA 28, 194 CLR 355 (McHugh, Gummow, Kirby and Hayne JJ, Brennan CJ dissenting). In that case, the High Court considered the distinction that had previously been made between a mandatory provision and a directory provision in relation to the exercise of a power. At one time, failure to follow a mandatory provision might have led to an exercise of a power being found to be invalid but failure to follow a directory power would not have. Much would have turned then upon the proper characterisation of a provision.
30. The distinction between mandatory and directory provisions is no longer a valid distinction to draw. That follows from the majority judgement of the High Court in Project Blue Sky Inc and Others v Australian Broadcasting Commission. Although dissenting, Brennan CJ summarised the current position when he said:
"... A provision may require the repository or some other person to do or to refrain from doing something (sometimes within a period prescribed by the statute) before the power is exercised but non-compliance with the provision does not invalidate a purported exercise of the power (Osborne v The Commonwealth (1911) 12 CLR 321 at 336-337; Buchanan v The Commonwealth (1913) 16 CLR 315 at 329): the provision does not condition the existence of the power (See, eg, Clayton v Heffron (1960) 105 CLR 214 at 246-248; Simpson v Attorney-General (NZ) [1955] NZLR 271; Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286; [1995] 1 All ER 367). Such a provision has often been called directory, in contradistinction to mandatory, because it simply directs the doing of a particular act (sometimes within a prescribed period) without invalidating an exercise of power when the act is not done or not done within the prescribed period. The description of provisions as either mandatory or directory provides no test by which the consequences of non-compliance can be determined; rather, the consequences must be determined before a provision can be described as either mandatory or directory." (page 374)
31. Brennan CJ had distinguished this type of provision from two other types of provision, which he compared in the following passage:
"A provision which directs the manner of the exercise of a power is quite different from a provision which prescribes an act or the occurrence of an event as a condition on the power - that is, a provision which denies the availability of the power unless the prescribed act is done or the prescribed event occurs. In one case, power is available for exercise by the repository but the power available is no wider than the direction as to the manner of its exercise permits; in the other case, no power is available for exercise by the repository unless the condition is satisfied (See, eg, Spicer v Holt [1977] AC 987). A provision which prescribes such a condition has traditionally been described as mandatory because non-compliance is attended with invalidity. A purported exercise of a power when a condition has not been satisfied is not a valid exercise of the power." (page 373)
32. This approach is consistent with that adopted by the majority when they said:
"In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood ([1978] 1 NSWLR 20 at 23-24. See also Victoria v The Commonwealth and Connor (1975) 134 CLR 81 at 161-162, per Gibbs J.) in criticising the continued use of the `elusive distinction between directory and mandatory requirements' (Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 146, per Gummow J.) and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning (McRae v Coulton (1986) 7 NSWLR 644 at 661; Australian Capital Television (1989) 86 ALR 119 at 147). That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales (Hatton v Beaumont [1977] 2 NSWLR 211 at 213, 226; Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 at 965; Tasker v Fullwood [1978] 1 NSWLR 20 at 24; National Mutual Fire Insurance Co Ltd v The Commonwealth [1981] 1 NSWLR 400 at 408; TVW Enterprises Ltd v Duffy [No 3] (1985) 8 FCR 93 at 102; McRae v Coulton (1986) 7 NSWLR 644 at 661 and see Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 at 457-460; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24-26. See also two recent decisions of the Court of Appeal of the Supreme Court of the Northern Territory: Johnston v Paspaley Pearls Pty Ltd (1996) 110 NTR 1 at 5; Collins Radio Constructions Inc v Day (1997) 116 NTR 14 at 17; and Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 at 1294, 1296; [1995] 1 All ER 367 at 375, 377). In determining the question of purpose, regard must be had to `the language of the relevant provision and the scope and object of the whole statute' (Takser v Fullwood [1978] 1 NSWLR 20 at 24)." (pages 390-391)
33. These principles were considered by Finkelstein J in Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 in the context of the provisions of s. 500(6C) of the Act. That section provides that, if a decision under s. 501 relates to a person in the migration zone, an application for review of a decision must be accompanied by, or by a copy of, the document notifying the person of the decision and one of the sets of documents given to him or her under s. 501G(2). Finkelstein J concluded that a failure to comply with s. 500(6C) would not result in invalidity of the application. He added that "no purpose would be served by invalidating an application for a failure to provide documents which the Tribunal can obtain in any event." (page 391)
34. In reaching that conclusion, his Honour observed:
"12 To arrive at the answer to the question posed I take account of the following matters. First, s 500(6C) is not expressed to be an essential requirement to be observed before the Tribunal determines an application for review. Secondly, the only documents that must accompany the application for review are those provided by the Minister to the applicant. If the Minister fails to comply with s 501G, an event which will not invalidate his decision (s 501G(4)), the purpose of the subsection will not be satisfied. Thirdly, however, and this is important to note, once an application for review has been received by the Tribunal, the Minister must be notified (s 500(6E)) whereupon, by reason of s 500(6F), the Minister must within 14 days lodge with the Tribunal two copies of every document, or part of a document, that:
`(i) is in the Minister's possession or under the Minister's control; and
(ii) was relevant to the making of the decision; and
(iii) contains non-disclosable information'
Fourthly, the scheme of the legislation thus far described is that when an applicant has complied with s 500(6C) and the Minister with s 500(6F), the Tribunal should have before it most, if not all, of the documents that will be referred to in the course of the review. Fifthly, it will be evident to the Tribunal that an applicant has not complied with s 500(6C) shortly after the Minister has been notified of the application. In that event the Tribunal, if it is so minded, can require the Minister to supply the missing documents. Section 500(6K) permits the Tribunal to require the production of documents. In any event, if relevant documents have not been produced they would be supplied by the Minister." (pages 390-391)
35. Further, Finkelstein J noted, failure to comply with s. 500(6C) would still mean that the application would be dealt with expeditiously as intended by Parliament. Cancellation of a visa would result in the deportation of the non-citizen and so cause great hardship to him or her and to his or her family. It was difficult to imagine, he said, that Parliament intended that a non-citizen should lose his or her right to review merely because documents that remained in the possession of the Minister had not been lodged.
36. Applying the principles in these cases to s. 500(3), I must have regard to the language of each and to the scope and purpose of the Act. When I do that in the context of s. 25 of the AAT Act and in the context of review provisions in the Act, it seems to me that Parliament did not intend the limitations to be in some way procedural. Rather, it intended to prescribe those who could make an application and, in doing so, limit those who could apply. It is a substantive provision intended to limit the rights of those who are affected by decisions under s. 501. Therefore, compliance with it cannot be ignored and, unless an application is made by a person prescribed by s. 500(3), the Tribunal does not have jurisdiction to consider it.
37. As Mr Assi was not a person who was entitled to make an application under s. 500(3), I decided that the Tribunal did not have jurisdiction to consider Mr Assi's application.
Miss S A Forgie (Deputy President)
Signed: ................................................................
P. Paczkowski Associate
Date of Hearing 23 January, 2003
Date of Decision 5 February, 2003
Counsel for the Applicant Mr M. Gerkens
Solicitor for the Applicant Fernandez Canda & Gerkens
Counsel for the Respondent Blake Dawson Waldron
Solicitor for the Respondent Ms J. Greaves
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