judicial review under s 39B of Judiciary Act 1903 (Cth)
Minister's power in s 351 of the Migration Act 1958 (Cth) to substitute more favourable decision in place of decision of Administrative Appeals Tribunal where Tribunal determined that it did not have jurisdiction to make a decision under the Migration Act
application dismissed
Quick Take
1Where an application for review of a Part 5-reviewable decision is not given to the AAT within the prescribed period under s 347(1)(b) of the Migration Act, the application is not 'properly made under section 347' for the purposes of s 348(1), the AAT has no review authority, and the Minister's substitution power under s 351(1) is not enlivened.
2The reasoning in ALJ22 v Minister for Immigration and Multicultural Affairs [2025] FCAFC 182 concerning s 417 and Part 7-reviewable decisions applies with equal force to the equivalent Part 5 provisions (ss 347, 348, 349, 351), notwithstanding the textual difference between 'valid application' in s 414(1) and 'properly made' in s 348(1).
3An adjournment application seeking to amend an originating application in order to circumvent a prior interlocutory ruling refusing discovery will be refused as inconsistent with the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth).
