MIGRATION - Visa cancellation under 501(3A) of the Migration Act 1958 (Cth) - Subclass 444 Special Category (Class TY) visa - substantial criminal record - failure to appear at the hearing - application dismissed under section 99 Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth)

1. On 27 January 2007, the Applicant, a citizen of New Zealand, entered Australia on a Subclass 444 Special Category (Class TY) visa.
2. On 26 April 2024, the Applicant was convicted of robbery in company, in company rob while armed with dangerous weapon, Sp gg B&E & commit serious indictable offence - wound, Sp gg B&E & commit serious indictable offence - weapon (two counts), for which he was sentenced to an aggregate term of imprisonment of five years and three months.
3. On 18 August 2024, a delegate of the Respondent mandatorily cancelled the Applicant's visa under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) due to the Applicant's substantial criminal record.
4. On 22 October 2025, the Applicant was removed voluntarily from Australia to New Zealand.
5. On 31 October 2025, a delegate of the Respondent decided not to revoke the decision to cancel the Applicant's visa pursuant to s 501CA(4) of the Migration Act. He was notified of this decision on 5 November 2025.
6. On 15 November 2025, the Applicant applied to the Tribunal for review of the decision not to revoke the cancellation decision. As the Applicant was not in the migration zone when he was notified of the decision not to revoke the cancellation decision, the proceedings were not limited by the timeframe in s 500(6L) of the Migration Act.

1. On 24 November 2025, the Tribunal held a telephone case management directions hearing. The Applicant attended by telephone and confirmed that he intended on retaining a representative to assist in the presentation of his case. The Tribunal directed that the Applicant provide any witness statements, evidence and submissions by 17 December 2025. The Tribunal also listed the application for hearing on 2 February 2026 and 3 February 2026, to be conducted by MS TEAMS.
2. On 25 November 2025, the Tribunal emailed the directions made and listing notice to the parties, including to the Applicant's personal email address, confirming that the application had been listed for hearing on 2 February 2026 and 3 February 2026.
3. On 18 December 2025, the Tribunal emailed the Applicant to follow up compliance with the direction issued on 25 November 2025 that the Applicant provide any witness statements, evidence and submissions by 17 December 2025.
4. On 7 January 2026, the Respondent emailed the Applicant, copied to the Tribunal, to follow up compliance with the direction.
5. On 9 January 2026, the Tribunal emailed the Applicant to again follow up compliance with the direction.
6. On 19 January 2026, the Respondent emailed the Tribunal seeking an extension to the timetable in light of the Applicant's non-compliance. The extension was not granted and instead, on 27 January 2026, the Tribunal listed the matter for a directions hearing by MS Teams on 29 January 2026 to discuss the non-compliance and existing timetable. The Tribunal notified the parties of the listing by email on 27 January 2026.
7. On 29 January 2026, the Applicant failed to appear at the directions hearing. Given the directions hearing notice was provided to the parties on 27 January 2026, being only 2 days prior, the Tribunal did not wish to consider any application for dismissal for non-appearance. Instead, the Tribunal vacated the hearing listed to commence on 2 February 2026 and relisted it as a directions hearing by MS TEAMS at the same date and time.
8. On 30 January 2026, the Tribunal emailed the directions made on 29 January 2026 and listing notice to the parties, including to the Applicant's personal email address, confirming that the application had been listed for a directions hearing on 2 February 2026. The notes to the directions and the covering email noted that if the Applicant failed to appear at the hearing and comply with the directions it may lead to a dismissal of the proceedings.
9. On 2 February 2026, the Applicant failed to join the MS TEAMS link at the time of the hearing. However, he answered his telephone and the directions hearing proceeded with him on the telephone. The Applicant explained that he wished to proceed with his application for review. He said he did not know about the earlier directions hearing and he did not comply with the directions made on 25 November 2025 due to being overwhelmed with work, finding accommodation and supporting himself in New Zealand. The Applicant was reminded that a failure to comply with directions or appear at the final hearing may lead to dismissal of the proceedings. The Tribunal also explained to the Applicant the importance of reading his emails, responding to them and taking time off work to attend the final hearing. The Tribunal directed that the Applicant to provide any witness statements, evidence and submissions by 20 February 2026. The Tribunal also listed the application for hearing on 9 March 2026 and 10 March 2026, to be conducted by MS TEAMS. Shortly after the directions hearing the Tribunal telephoned the parties to explain that 9 March 2026 was a public holiday so the Tribunal would list the hearing on 10 and 12 March 2026. The Applicant orally confirmed these new dates were suitable. Also on 2 February 2026, the Tribunal emailed the directions made and listing notice to the parties, including to the Applicant's personal email address, confirming that the application had been listed for hearing on 10 March 2026 and 12 March 2026, to be conducted by MS TEAMS.
10. On 23 February 2026, the Tribunal emailed the Applicant to follow up compliance with the direction issued on 2 February 2026 that the Applicant provide any witness statements, evidence and submissions by 20 February 2026.
11. On 24 February 2026, the Tribunal attempted to telephone the Applicant to follow up compliance with the direction issued on 2 February 2026 but was unable to reach him.
12. On 2 March 2026, the Tribunal again emailed the Applicant to follow up compliance with the direction issued on 2 February 2026.
13. The Applicant has not ever responded to any of the Tribunal's correspondence about his non-compliance with directions.
14. On 10 March 2026, the Applicant failed to join the MS TEAMS link at the time of the hearing. The Tribunal was also unable to reach the Applicant by telephone. Shortly after the hearing was concluded, a Tribunal officer was able to get through to the Applicant by telephone and he advised that he was working and unavailable for the hearing.
15. When the Applicant failed to appear the Respondent's representative undertook to attempt to contact his sister who had provided contact details with her statement to the delegate. Following the hearing the Tribunal was advised by the Respondent's representative that she spoke to the Applicant's sister who 'advised that she has no telephone or email contact information for [the Applicant] at all, and that she only communicates with [the Applicant] via Facebook.' The Respondent's representative further advised that she requested that the sister 'pass on that [she] called, and that [the Applicant] is welcome to contact [her] directly to discuss this matter further.'

1. Section 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) states:

If: > > (a) the applicant fails to appear at a Tribunal case event that relates to a proceeding in relation to an application; and > > (b) the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event; > > the Tribunal may dismiss the application. > > Note 1: Tribunal case events include hearings, direction hearings and dispute resolution processes (see the definition of Tribunal case event in section 4) > > Note 2: For how to appear at a Tribunal case event, see section 73.

The Tribunal may dismiss an application made to the Tribunal if the applicant fails to do either of the following within a reasonable time: > > (a) proceed with the application; > > (b) comply with this Act or an order of the Tribunal in relation to the proceeding in relation to the application.

3. A party may apply to the Tribunal for reinstatement of an application which has been dismissed under s 99 or s 100 of the ART Act within 28 days after receiving notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows): s 102(7) of the ART Act.

1. I am satisfied that the Applicant failed to appear at a 'Tribunal case event' that related to a proceeding in relation to an application for the purposes of s 99(a) of the ART Act. Relevantly, s 4 of the ART Act defines 'Tribunal case event', in relation to a proceeding before the Tribunal, to mean, amongst other things: 'the hearing, or part of the hearing, of the proceeding'.
2. I am also satisfied that the Applicant received appropriate notice of the date, time and place of the Tribunal case event for the purposes of s 99(b) of the ART Act.
3. I acknowledge the significant legal consequences to the Applicant by not having his application for review determined, particularly in relation to his inability to return to Australia. However, I must also balance the need of the Tribunal to pursue its objective to ensure that applications are resolved as quickly as proper consideration permits: s 9, ART Act. I am satisfied that, in offering the Applicant the opportunity to attend a second hearing and by not earlier dismissing the application for failure to appear at the case event on 29 January 2026 or for non-compliance with orders of the Tribunal, the Tribunal has been fair to the Applicant.
4. I am not satisfied that Applicant would attend a future hearing of the Tribunal in circumstances where he has been invited to attend a substantive hearing twice, he has not complied with directions, he not responded to the Tribunal's attempts to contact him about his non-compliance, he has not sought an extension to comply with the directions nor has he sought an adjournment of the hearing.
5. By dismissing the application, the Applicant may seek a reinstatement of the application within 28 days after receiving notice that the applicant is dismissed. If he does make such application, he should explain the reasons for his non-attendance as well as for his non-compliance with the directions and provide any available evidence to support those reasons for the Tribunal's consideration. If the Tribunal considers it appropriate, the Tribunal may reinstate the application and make such order as appears to the Tribunal to be appropriate in the circumstances: s 102(9) of the ART Act.
6. For the reasons given above, the Tribunal has determined to dismiss the application.

1. The Tribunal dismisses the application for review under s 99 of the ART Act.

1. Advocate for the Applicant:
2. Advocate for the Respondent:

1. Self-Represented (no appearance)
2. Mary Trimboli, Clayton Utz