8 January 2018 and the substantive application was, on that day, dismissed by

Deputy President Constance and Senior Member Puplick under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) on the basis that the Applicant had failed to appear at the hearing of the proceeding (R1, 2/217). The circumstances of that failure to appear were set out by Deputy President Constance in his decision on the Applicant's application for reinstatement as follows:[1]

4. On 8 January 2018, prior to the hearing commencing, the management of the Centre advised that Mr Somba refused to be transported to the Tribunal. The hearing commenced at the appointed time. The Tribunal then telephoned the Centre and asked to speak to Mr Somba. The Tribunal was advised that Mr Somba refused to come to the telephone.

5. After ascertaining that Mr Somba was not in the precincts of the Tribunal his application was dismissed by reason of his failure to attend the hearing.

1. On 6 February 2018 the Applicant sought reinstatement of the substantive application (R1, 2/218). No supporting documentation accompanied that application for reinstatement which stated (in full):

I, Hanz Christian Somba hereby requesting for my application for review hearing at the Administrative Appeals Tribunal (AAT) to be reinstated. I understand that my appeal has been dismissed due to my absence. But, let me explain why I was not able to appear for the hearing at the AAT on the 08/01/2018. It was because I was not in a good state of physical condition. That morning of the hearing, I set my alarm to wake me at 07:30am, as serco said that they will be taking me on escort at 08:00am. But, when I did wake up that morning I woke up with a migraine. And when serco came to take on escort, I could not get out of bed as my head felt so heavy that when I tried to walk I had to hold on to something so that I would not fall. I think it was the after effect or the sleeping pills that I took night before the hearing as I have never taken those pills before. And the only other time where I have taken a sleeping pill, a different one at that, also had bad effect on me. The reason why I took two sleeping pills at roughly 9:30pm on the eve of the hearing is to give myself enough rest and be ready the next morning as I have not been sleeping well due to stress. At least a week before the hearing I have been highly stressed and restless over the fact that the hearing is coming closer. Also, since I think that I am not in the best preparation for it or at least in the way I hope it to be. I was overwhelmed by the whole situation. Yes, it is overwhelming to know that perhaps on the one occasion where I have to argue my points to fight for my life so to speak and I do not have an ideal preparation for it due to few factors. Factors such as I am under equipped to represent myself as I do not have legal representative, lack of support as I could not put in more reference to support my case and stories I heard from other cases where even if one should get a favourable decision at the AAT, the Minister of Immigration can and will cancel the decision anyway. So, in light of all these factors I felt overwhelmed and defeated, because I think that I am trying to fight a battle that can not be won. So, here I am requesting for the AAT to consider upon reinstating my application for review.

1. On 5 June 2018 the Tribunal made a decision that the Applicant's application to reinstate the substantive application be dismissed (Somba and Minister for Immigration and Border Protection)[2] (the reinstatement decision). The Tribunal found that the application for reinstatement would be futile as the Applicant had sought reinstatement after the expiration of the 84 day period under s 500(6L) of the Act. Having reached that conclusion, the Tribunal did not consider the application further.
2. On 4 July 2018 Justice Thawley made orders restraining the Respondent by himself or his department officers, agents and delegates from removing the Applicant from Australia (Somba v Minister for Home Affairs).[3]
3. The Applicant sought judicial review of the reinstatement decision. By judgment dated

12 October 2018, Justice Barker dismissed the application for judicial review

(Somba v Minister for Home Affairs (No 2)).[4] 4. The Applicant appealed the decision of Justice Barker. By judgment dated

30 August 2019, the Full Court (Logan, Steward and Jackson JJ) allowed the appeal, quashed the reinstatement decision and issued a writ of mandamus directing that the Tribunal determine the reinstatement application according to law (Somba v Minister for Home Affairs).[5] It is that application that is presently before the Tribunal. 5. At some time prior to the hearing of the appeal by the Full Court the Applicant voluntarily left Australia and returned to Indonesia where he is, apparently, still residing (email dated 12 November 2019 from Dr Cameron to the Tribunal and Transcript at 29).

1. The application was heard on 6 February 2020. The Applicant was represented by

Dr JL Cameron on a pro-bono basis. The Tribunal thanks Dr Cameron for providing assistance to the Applicant. The Respondent was represented by Mr A Gerrard instructed by the Australian Government Solicitor. 2. The Applicant did not seek to lead any evidence at the hearing and relied on his written submissions filed with the Tribunal on 9 January 2020. The following documents were put into evidence at the hearing by the Respondent: * (a) Remittal Bundle (including the G Documents) (R1); * (b) Document headed 'Service Request Activity Plans' showing arrangements for transport of the Applicant from Villawood Immigration Detention Centre to the Tribunal at Level 6 Clarence Street Sydney on 8 January 2018 (R2); and * (c) International Health and Medical Services form headed 'Section B; Fitness to Travel' dated 11 January 2011 certifying the Applicant fit to travel (R3). 3. As well as the Applicant's submissions of 9 January 2020, the Tribunal had the Respondent's submissions dated 28 January 2020. It also had various documents filed by the parties and correspondence between the parties and the Tribunal in relation to the substantive application as well as the application for reinstatement of that application. 4. Orders were made on 8 November 2017 that by 1 December 2017 the Applicant was to give to the Tribunal and the Respondent all witness statements and other documents on which he intended to rely at the hearing of the substantive application, or notify the Tribunal and Respondent that he did not intend to file any documents. By an email sent on 5 January 2018 the Applicant advised the Tribunal and the Respondent's legal representative that he 'would not be submitting further information'. No direction was made requiring the Applicant to file and serve a statement of facts, issues and contentions in the substantive application and none was filed. The Respondent filed a statement of facts, issues and contentions in the substantive application on 18 December 2017.

1. Section 42A of the AAT Act relevantly provides:

(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

(a) if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision; or

...

(7) Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.

...

(8A) If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.

(8B) For the purposes of subsections (8) and (8A), the period is:

(a) 28 days after the party receives notification that the application has been dismissed; or

(b) if the party requests an extension--such longer period as the Tribunal, in special circumstances, allows.

(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

1. The Applicant's submissions were brief and it is appropriate to set them out in full, excluding the uncontentious background summary and excerpts from s 42A of the AAT Act.

1. Reinstatement would be permit Mr Somba, who is now legally represented, to present his case for review, and for the Tribunal to hear and determine under section 42A(9) of the Act.

1. In Zablotski (sic) at [105], the Tribunal adopted, for the purpose of considering reinstatement, principles applied by the Federal Court to applications for extension of time in Hunter Valley Developments Pty Ltd v Cohen. These require:

5.1. an applicant to show an "acceptable explanation of the delay"; and

5.2. that it is "fair and equitable in the circumstances" to extend time.

5.3. A distinction is to be made between an applicant:

5.3.1. who has "rested on his rights" and allowed the decision-maker to believe that the matter was finally concluded; and

5.3.2. one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

5.4. It in the present case the Tribunal should into consideration:

5.4.1. any prejudice to the respondent caused by the delay;

5.4.2. the merits of the substantive application; and

Explanation for the delay.

5.5. On 8 January 2018 the Tribunal was informed, that Mr Somba was refusing to be transported, or to come to the telephone: RB 220-221 at [4].

Mr Somba was not present, and the Tribunal, as entitled by section 42A(2)(a) of the Act, dismissed his application: RB 221 at [5].

Fair and equitable?

1. The merits of his application to the Federal Court were sufficient to move his Honour Justice Thawley to grant an injunction preventing his removal from Australia, and to move the Federal Court to remit the matter back to the Tribunal. In the circumstances of his non-appearance, the Tribunal dismissed his application without regard to the merits of the substantive application on which he has never been heard.

1. After dismissal of his application Mr Somba applied for reinstatement within time: RB 218. It cannot be said that he has rested on his rights in that regard, and he has since pursued these up to and including the Full Court of the Federal Court in proceedings in which the Tribunal has been the second respondent.

1. There is no obvious prejudice to the Minister. It is accepted that an absence of prejudice alone does not mean that reinstatement should be granted: Hopkins v Repatriation Commission at [27] per Lander J.

1. If the principles relevant to an extension of time to appeal set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & Environment are satisfied on an application for reinstatement, the Tribunal should be slow to reject the application for nor reason other than that the substantive application would be unlikely, or even very unlikely to succeed.
2. Only if the substantive application is conspicuously devoid of merit, and thus pointless, should the Tribunal reject an application for reinstatement: Culley v Australian Securities and Investments Commission at [5] to [6] per Jessup J. Time to appeal was extended in Hua-Aus v Commissioner of Taxation even though Edmonds J said at [27] that he had difficulty in accepting the applicant's arguments.
3. It is accepted that if an application for review will necessarily fail, there is no point in granting reinstatement. When an appeal will fail it would be futile to grant leave to extend time to file a notice of appeal if the proposed appeal will necessarily fail: Burke v Comcare . This is not such a case.
4. In the area of migration, in SZSQL v Minister for Immigration and Border Protection an extension of time to file a notice of appeal was granted but only on specified grounds. Such considerations do not arise in the present case.

1. Mr Somba seeks the reinstatement of his application for review with directions progressing the matter to a hearing.

1. As noted above, the Respondent filed submissions in the present application and had, in December 2017, filed a statement of facts, issues and contentions in the substantive application.
2. The Respondent's submissions in relation to the present application were to the effect that:
   • (a) The relevant questions for the Tribunal is whether it is 'appropriate' to reinstate the substantive application.[6] Whilst the Tribunal's discretion in respect of s 42A(9) is "broad",[7] the factors frequently considered are:[8]
     • The explanation for the applicant's failure to appear at a hearing;
     • The applicant's conduct in prosecuting their application generally;
     • Prejudice to the parties;
     • The merits of the substantive application;
     • The public interest.
   • (b) The starting point for the Tribunal in assessing whether it is appropriate for the substantive application to be reinstated is the Applicant's explanation for his failure to appear at the hearing. The Applicant's explanation was fairly summarised by the Tribunal in [10] of the dismissal decision as follows (R1, 4/222):
     • On the morning of the hearing he suffered a migraine headache and could not walk properly;
     • Management refused his request for a nurse to attend him;
     • He thought that he may have been affected by sleeping pills he had taken the previous evening;
     • He did not think he was properly prepared for the hearing and was overwhelmed by the whole situation;
     • He had been told that even if the Tribunal made a decision in his favour the Minister would cancel the decision in any event;
     • In the light of all these factors he felt "overwhelmed and defeated".
   • (c) The above explanation is not adequate, persuasive or acceptable. It is not supported by any documentary evidence. The Applicant has not provided any evidence that he had been prescribed sleeping pills and he has not provided any evidence that he sought medical attention in respect of his alleged migraine. In those circumstances, the Tribunal has no evidence before it to establish that the Applicant was indisposed to the extent where it was impossible for him to attend the hearing either in person as arranged or by telephone once that opportunity had been offered. The Applicant's self-serving evidence without corroborating evidence in this regard should be taken with caution.[9] Further, the Applicant was given an additional opportunity to attend by telephone and refused to do so.
   • (d) Ultimately, the Applicant's explanation for his failure to attend the hearing and his refusal to even speak to the Tribunal by telephone amounts to an unsubstantiated claim that he had a migraine coupled with a fear that he was unprepared for the hearing and overwhelmed. The Minister contends that is not an adequate explanation. This is a factor which weighs heavily, and potentially determinatively, against reinstatement.
   • (e) While the Applicant lodged an application for reinstatement within time, it is of noted that he failed to advise the Tribunal as to the basis of his failure to appear until well after the dismissal of his application.
   • (f) The Minister concedes that he will suffer no specific prejudice if the application is reinstated and that the merits of the substantive application is a matter for determination.
   • (g) The public interest is a factor which weighs against reinstatement. While the

Full Court found the Tribunal erred by finding the application of the 84 day period in s 500(6L) of the Migration Act rendered the application for reinstatement futile, it nevertheless found that the policy behind s 500(6L) was a relevant consideration to be taken into account:[10]

...Each of s 42A(9) and s 42A(10) give the Tribunal a discretion as to whether to reinstate an application and a discretion as to what directions to make in the circumstances. The policy evident from the 84 day time limit is a matter that is appropriate for the Tribunal to take into account in the exercise of both of those discretions, as are the provisions of the AAT Act which require swift determination of applications for review (see for example s 2A, s 18A, s 33(1)(b) and s 33(1AB)). There is little chance that the flexibility given to the Tribunal in those circumstances will be exploited by applicants wishing to delay their departure from Australia. It would be a brave, or rather foolhardy, applicant who would deliberately fail to appear at a hearing (or do any of the other things which can lead to dismissal under s 42A of the AATA Act) as well as somehow seek to manufacture the necessary explanation for delay or default, solely in order to seek to circumvent the 84 day time limit.

(h) Accordingly, the Minister submits that the Tribunal should have regard to the fact that the application for reinstatement sought to have the substantive matter determined contrary to the policy behind the 84 day time limit contained within

s 500(6L). That is a matter which goes to the public interest. It is also a matter which goes to the consideration of fairness as between the Applicant and other persons in a similar position. Put simply, other applicants would be confronted with the need to have their application for non-revocation of a mandatory cancellation decision heard and determined within 84 days irrespective of whether they felt

ill-prepared or overwhelmed.

1. This application for reinstatement is made under s 42A(9) of the AAT Act. As noted by Justice O'Callaghan in Serpinli at [24]:

24. The Tribunal, in considering the applicant's application for reinstatement, had regard to the relevant test in s 42A(9) of the AAT Act and correctly identified that the question for determination was whether it was "appropriate" to reinstate the application.

25. At the outset of the hearing in this case, the Tribunal confirmed that the issue before it was whether or not "it's appropriate that [the applicant's] case be reinstated". The Tribunal said that in doing so it needed to consider: whether the applicant had reasonable excuse for failing to attend the hearing, and whether the application had prospects of success.

26. In considering whether to reinstate the application, the Tribunal can have regard to a range of factors in determining whether it is "appropriate" to reinstate an application. These factors may vary from case to case, but include a consideration of the merits of the substantive application, and in circumstances where the application was dismissed for failure to appear at the hearing, the explanation for it.

1. While the general thrust of the parties' respective submissions as to the factors to be considered by the Tribunal in determining whether it is appropriate to reinstate the substantive application were similar, the route by which each party arrived at the identification of those considerations was slightly different.
2. The Applicant referred to the Zablotsky and Secretary, Department of Social Services[11] (Zablotsky) and the adoption by the tribunal in that case of the considerations used in Hunter Valley Developments Pty Ltd v Cohen[12] (Hunter Valley) (see [20] above). On that basis the Applicant identifies the factors referred to in [20] above being:
   • explanation for delay;
   • fair and equitable;
   • resting on his rights;
   • prejudice; and
   • merits of the application for review
3. While the Tribunal accepts that some of the above factors have some relevance to the question to be answered by the Tribunal, namely whether it is appropriate to reinstate the substantive application, the factors identified, at least as they are expressed, do not fit comfortably with an application for reinstatement of an application that was dismissed for failure to appear at the hearing. The application being dealt with in Zablotsky was an application by the Secretary, the respondent in the proceedings, for reinstatement of an application that had been withdrawn by the applicant. The tribunal in that case accepted the Secretary's contention 'that the principles laid down in Hunter Valley and referenced by the Full Court in Goldie (Goldie v Minister for Immigration and Multicultural Affairs[13] (Goldie) which establish the bases upon which an extension of time application can be considered, should be applied in equal measure to assessing reinstatement applications' (Zablotsky at [104]).
4. While this Tribunal appreciates that it does not have the benefit of the submissions made by the Secretary in Zablotsky, and does not cavil with the approach taken in Zablotsky, care must be taken when adopting principles from other cases to ensure that the context of and the purpose to which those principles are to be applied are comparable. As is noted in the above cited passage from Zablotsky, Hunter Valley and Goldie were both cases dealing with an application for extension of time, in the case of Hunter Valley, an extension of time to bring an application for review under the Administrative Decisions (Judicial Review) Act 1977 and, in the case of Goldie, an extension of time in which to appeal to the Federal Court, under s 44 of the AAT Act. It is in that context that the respective courts in Hunter Valley and Goldie formulated the factors to be taken into account in exercising the discretion to extend time. In those cases an obvious factor to take into account was the extent of the delay which necessitated the application for an extension. Similarly in those cases a relevant consideration would be whether, in the period of the delay, the party seeking the extension of time had rested on their rights.
5. Accordingly, while the general thrust of considerations that courts and other tribunals have taken into account in exercising the discretion to extend time may be a general guide, they cannot simply be adopted as being applicable to an application for reinstatement of an application that was dismissed for a failure by the applicant to appear at the hearing. This issue of the transposition of tests was discussed by Deputy President Forgie in John Oates and Secretary, Department of Social Security[14] (Oates). That case involved an application for reinstatement of an application that had been dismissed under s 42A(2) of the AAT Act because of the applicant's failure to appear at the hearing. In discussing the approach to be taken in the reinstatement application, Deputy President Forgie observed:
   1. Although an application for reinstatement of a dismissed application is not the same as an application to extend time, they are similar in that, at the heart of each application is a request that the Tribunal give the applicant special consideration and alter what would otherwise be the applicant's position.
6. There are also similarities between an application for reinstatement under sub-section 42A(8) and applications to set aside a judgement entered against a defendant as a result of its failing to take certain action or an application to set aside an order dismissing a proceeding because of a person's delay in prosecuting it or in failing to comply with procedural directions. Applications such as those are made in other jurisdictions and whether they are made by way of appeal or by of an application for the reinstatement of the original application or proceeding depends on the Rules of Court under which they are made.
7. Deputy President Forgie went on to discuss a number of authorities which dealt with the setting aside of judgments resulting from a party failing to take certain action, in particular the Full Court of the Federal Court in Davies v Pagett[15] (Oates at [11]). She concluded that:
   1. The general principle to be gleaned from the judgement in Davies v Pagett seem to be that justice must be achieved between the parties. In considering what is a just resolution, regard must be had to whether the party seeking the order for reinstatement has an apparent good case and whether there is any prejudice to the other side caused by the applicant's conduct. Any delays or failure to comply with procedural obligations were considered in that context only.

1. When regard is had to these cases, it would seem that courts approach applications for reinstatement or to set aside default judgements from a slightly different premiss from that they adopt for applications for extension of time. The latter start from the premiss that proceedings which are out of time should not be entertained and so not only are issues of the substantive merits of the application and fairness and equity between the parties relevant but also questions of public interest concerning fairness between the party in default and other people in a similar position. The former do not seem to be based on a premiss that application should not be reinstated. Rather, they seem to adopt a view that, provided the party seeking reinstatement can establish a prima facie case and it is fair to the other party to reinstate the application, it will be reinstated.
2. Deputy President Forgie expressed the view that:
   1. Returning to the particular provisions of sub-section 42A(8) of the AAT Act, it seems to me that applications made under its provisions are more akin to applications made in other courts concerned with issues of reinstatement and the setting aside of default judgements rather than with applications for extension of the time allowed to commence proceedings in the first place.
3. The approach taken by Deputy President Forgie in Oates of considering an application for reinstatement as more akin to an application to set aside a judgment rather than an application for an extension of time, has generally not been followed by subsequent tribunals.[16] The approach most commonly taken in the Tribunal has been that taken, in effect, by the parties in this application, albeit with variations to reflect the basis upon which the application was dismissed in the first place. The different approach taken by Deputy President Forgie in Oates, however, does serve as a reminder that one cannot simply literally transpose tests from one context to another without ensuring that they remain apposite.
4. While the Applicant has in the headings in his written submissions adopted close to the literal wording of the tests applied in Hunter Valley (see heading in submissions at [20] above), it would be fair to say that the substance of the submissions in some cases address the similar factors relevant to the present application. For instance, although headed 'Explanation for the delay', paragraph 5.5 of the submissions refers to the Applicant's failure to attend the hearing rather than explaining any delay.
5. With the relevant test as identified by Justice O'Callaghan in Serpinli at [24] (see [23] and [24] above) in mind, the Tribunal considers the better expression of the relevant factors to be those identified by the Respondent in his submissions as set out in [22 (a)] above. The Tribunal is satisfied that the elements of the factors identified by the Respondent were, in substance, addressed by the Applicant in his written submissions and by his counsel at the hearing.
6. The Tribunal does, however, consider that the critical factors to be taken into account are those specifically identified by Justice O'Callaghan in Serpinli, namely, the merits of the substantive application and the explanation for the Applicant's failure to appear at the hearing (see [24] above). The Tribunal notes Justice O'Callaghan's reference at [26] of his judgment to the factors to be taken into account as varying from case to case, and that the factors 'include' the two specifically identified, so the Tribunal will address the other considerations raised by the parties.

The explanation for the Applicant's failure to appear at the hearing

1. As noted at [33] above, although the heading at paragraph 5.5 of the Applicant's submissions refers to an explanation for delay, that which follows is not only not an explanation of any delay, but does not even seek to explain why the Applicant did not appear at the hearing of the substantive application on 8 January 2018. The submission at paragraph 5.5 is a concession that the Applicant did not appear at the hearing and that, as a result, the Tribunal was entitled to dismiss the substantive application under

s 42A(2)(a) of the AAT Act. 2. At the hearing Dr Cameron took the Tribunal to R1, 3/218 which is the Applicant's email dated 6 February 2018 seeking reinstatement of the substantive application. The full text of that email is reproduced at [9] above. Dr Cameron also referred the Tribunal to [10] of Deputy President Constance's decision of 5 June 2018 dismissing the Applicant's application for reinstatement of the substantive application (R1, 4/222) which was:

• on the morning of the hearing he suffered a migraine headache and could not walk properly;
• management refused his request for a nurse to attend him;
• he thought that he may have been affected by sleeping pills he had taken the previous evening;
• he did not think he was properly prepared for the hearing and was overwhelmed by the whole situation;
• he had been told that even if the Tribunal made a decision in his favour the Minister would cancel the decision in any event;
• in the light of all these factors he felt "overwhelmed and defeated".

1. Deputy President Constance in a footnote to that passage identifies the source of that evidence as:

Email from Mr Somba dated 6 February 2018 which was affirmed at the hearing of the application for re-instatement.

1. As far as this Tribunal can ascertain there is no transcript of the hearing before

Deputy President Constance. The Tribunal notes that Deputy President Constance at the foot of his decision notes the appearances for the parties and that the Applicant appeared 'In person'. It would therefore seem that the Applicant did appear at the hearing before Deputy President Constance and, it would further appear, gave evidence. The reason that it would appear that the Applicant gave evidence is that Deputy President Constance at [10] of his decision (R1, 4/222) refers to management refusing the Applicant's request for a nurse to attend him (see [37] above). That, however, is not a claim made by the Applicant in his email of 6 February 2018 (see [9] above). In the end

Deputy President Constance did not make any assessment of the veracity of the Applicant's claim of medical incapacity on the hearing date because of his finding that reinstatement was futile because of the operation of s 500(6L) of the Act.[17] 2. The Applicant did not, or at least did not initially, suggest that the dismissal of the substantive application on 8 January 2018 was not proper and justified in the circumstances. Early in the hearing on 6 February 2020 the following exchange took place between the Tribunal and Dr Cameron:

DEPUTY PRESIDENT: In that a lot of the cases seem to be run on the basis that the application should never have been dismissed in the first place because there wasn't an inordinate delay or the direction in one case was ambiguous, therefore the application should not have been dismissed under 42A(5). Or in this case is it saying that, well, he had a valid reason for not being there, therefore it was an error to dismiss the application and that's why they ended up transmogrifying effectively into 42A(1) decisions.

DR CAMERON: I'm not running it on that basis and I don't believe it would be appropriate to run it on that basis here.

DEPUTY PRESIDENT: Okay. So in which case what is the relevance then? If this is not a rerun of whether or not the application should have been dismissed as it was on the 8 January 2018 what is the relevance of his explanation for not appearing on that date? Because that's what paragraph 10 [of the decision of Deputy President Constance] is dealing with.

DR CAMERON: Yes. He says first of all that the tribunal was justified in dismissing it on that date because he didn't appear. And, in fact, he didn't appear.

DEPUTY PRESIDENT: Yes.

DR CAMERON: End of story. But he then says:

In terms of the reinstatement I didn't appear because of these reasons.

And therefore it would be using the - applying the usual principles for reinstatement. It would be appropriate to reinstate it. It wasn't that I refused to appear. He says I was not in any condition to appear and that - - -

DEPUTY PRESIDENT: But again, that seems to me to be trying to disturb. On the one hand you say, yes, the entry of the dismissal under 42A(4) on the 8th was justified and correct because simply as a matter of fact he didn't appear.

DR CAMERON: He didn't appear, yes. He wasn't there.

DEPUTY PRESIDENT: Whether or not he's got an excuse for that surely exercises this tribunal's determination as to whether or not the decision on 8 January was the correct one or as is in some cases argued it would have been more appropriate on that day to adjourn it.

DR CAMERON: Yes.

DEPUTY PRESIDENT: But that doesn't seem to be an argument that's been run. And the trouble I'm having as far as - or I see the applicant having is that if it's not being contested that the decision, the striking out or the dismissal of the application without consideration on its merits was justified on the 8th, then I don't see the utility or the relevance of rerunning arguments as to, yes, but there was a reason for that.

It may be relevant in the general consideration of the equity between the parties under section 42A(9) but when we're looking at the merit, and if we do get into the cases even Hunter Valley Developments and so on, we're looking at the merit of the substantive application. That's what those cases are looking at, not whether or not the application should have been dismissed in the first place, which I hear you to be saying, well, we don't contest that it was correct that it be dismissed on that date.

DR CAMERON: Because if it had have been incorrect on that - to be dismissed on that date the alternative would have been to seek review of that dismissal rather than reinstatement. And what we are - - -

DEPUTY PRESIDENT: Correct. And that's not the path that's been gone down.

DR CAMERON: No, that's not the path that's been gone down. The path that's being gone down is reinstatement.

DEPUTY PRESIDENT: Yes.

1. In replying to the Respondent's closing submissions at the hearing, however, Dr Cameron made the following statement in relation to a statement by the Respondent's counsel that the Applicant had been given an opportunity to attend the hearing on 8 January 2018 by telephone and had declined to do so:

But there is no - and not even in my friend's summary of what Deputy President Constance found on page 222, I take it back to the original 222, there's nothing in that evidence at paragraph 10 that indicates that he was given an opportunity to come to the phone and refused to do so. If he had - yes, but I note that's not in the evidence, that's not a summary of the evidence which was given. If he had then presumably and brought to the attention of the tribunal that he was indisposed that could have been the basis of an application for an adjournment. And taking into consideration what was found in paragraph 10 it would seem that it would have been unreasonable to refuse him an adjournment.

1. There followed an exchange between the counsel in which it was pointed out to Dr Cameron that there was some evidence that the Applicant had firstly refused to be transported to the hearing at the tribunal on 8 January 2018[18] and that he had then refused to come to the phone when later rung by the AAT registry.[19] That sequence of events was also set out in Deputy President Constance's reinstatement decision (see [8] above).
2. Dr Cameron then continued:

DR CAMERON: There is reference but - and my learned friend has just drawn my attention to it, there's reference to it but that's not evidence, it's not the evidence that was actually found upon which the tribunal relied.

...

DEPUTY PRESIDENT: Not so much - because I think, wasn't it, I thought the evidence was that there were two phone calls and there was a call back and he still refused to come to the phone.

DR CAMERON: Yes. But it was hearsay upon hearsay upon hearsay which, of course, the tribunal can accept. But the weight that can be put on that is, in my submission, limited.

1. While the comments by Dr Cameron quoted at [41] above that '...taking into consideration what was found in paragraph 10 it would seem that it would have been unreasonable to refuse him an adjournment' are possibly inconsistent with Dr Cameron's opening summary of the Applicant's case, particularly the statement made in the exchange quoted at [40] above, that it was not the Applicant's case that '...it would have been more appropriate on that day to adjourn it', the Tribunal does not understand the Applicant to be arguing that the dismissal of the application on 8 January 2018 was legally flawed or in error.
2. Accordingly, the lens through which the Tribunal is to view the Applicant's explanation for his non-appearance on 8 January 2018 is not one to suggest some error in the dismissal of the application or that some course other than dismissal should have been followed, but rather, whether the explanation demonstrates some disregard by the Applicant for the Tribunal or the process or some other conduct which would militate against the exercise of a discretion in the Applicant's favour.
3. The sum total of the Applicant's explanation for his non-appearance appears to be his email of 6 February 2018 (see [9] above) and the evidence apparently given at the hearing before Deputy President Constance on the reinstatement application. The Respondent contends that the Applicant's explanation for his failure to attend the hearing, and his refusal to even speak to the tribunal by telephone, amounts to an unsubstantiated claim that he had a migraine coupled with a fear that he was unprepared for the hearing and overwhelmed. That, the Respondent's says, is not an adequate explanation. Dr Cameron submitted that:[20]

And I must accept that there's no evidence from Mr Somba today that he wasn't offered the phone call. It's all very well to say that he felt overwhelmed and that of itself would not be sufficient to grant reinstatement and I accept that. But that's not the case that Mr Somba is putting. Mr Somba is putting it all together that he had a migraine and was unable to walk. And put together with that he felt overwhelmed. In other words one takes all of those matters into consideration.

1. There is no medical evidence to support the Applicant's claim that he was, in effect, medically indisposed, however, by the same token, there is no evidence that his claim of having a migraine and being affected by sleeping pills as he describes (see [9] above), is incorrect. As the Applicant did not appear at the hearing on 6 February 2020, did not put on any further evidence in support of the application for reinstatement and did not seek to appear by telephone at the hearing on 6 February 2020, his claims remain untested and unsubstantiated.
2. As noted above, at the hearing on 6 February 2020 two further documents were tendered by the Respondent, the second of which (R3) was an IHMS (International Health and Medical Services) document headed "Fitness to travel" dated 11 January 2018. The Tribunal places no weight on that document. The document itself notes that the author, apparently a registered nurse, had not examined the Applicant for the purposes of preparing the report and had relied on unidentified 'medical records'. That document cannot be taken as evidence of the Applicant's medical condition on 8 January 2018. The Tribunal notes that the Respondent did not contend that that report was indicative of the Applicant's medical condition on 8 January 2018 and that the report, and the other document (R2), as explained by Mr Gerrard, were 'put forward as the only sort of contemporaneous record'.[21]
3. In the end the explanation provided by the Applicant for his non-appearance on

8 January 2018 is not particularly satisfactory because of the lack of any corroborative evidence and because of the inability to test the explanation due to his non-appearance at the hearing on 6 February 2020. All that the Tribunal has, in effect, is the unsubstantiated and untested assertion by the Applicant contained in his email of 6 February 2018 (see [9] above). 4. Although the Applicant's explanation is not particularly satisfactory, in the final analysis the Tribunal considers this factor to be of minor importance compared to the other factors to be taken into account, most significantly, the merit of the Applicant's substantive application.

The Applicant's conduct in prosecuting his application generally

1. Although this was a consideration raised by the Respondent, it is not clear where in the Respondent's submissions it is addressed. At paragraph 21 of his submissions the Respondent noted that while the Applicant lodged the application for reinstatement within time, he failed to advise the tribunal of the reason for the failure to appear 'until well after the dismissal of his application'. The significance of this fact to the consideration identified by the Respondent is not clear.
2. While the substantive application is one that has been on foot for a considerable time now, the substantive application having been lodged with the tribunal on 31 October 2017, the Tribunal finds that there has been no delay by the Applicant in prosecuting that application. The time taken to get to where the proceedings presently sit is explained by the various appeals (see [10] to [13] above) in which the Applicant has, in the end, been successful.

1. This was a consideration identified by the Applicant at paragraph 6 of his submissions (see [20] above). It is not clear to the Tribunal exactly what consideration is sought to be addressed by this submission. The submission appears to say no more than the substantive application was dismissed without the merits of that application being considered. That, of course, is always the case when an application is dismissed under

s 42A of the AAT Act. That, of itself, cannot be a consideration in exercising a discretion under s 42A(9) of the AAT Act which deals only with applications that have been dismissed without their merit being considered. The submission, however, appears to seek to argue the merit of the substantive application, a separate and critical consideration dealt with under the heading of the merits of the substantive applicant. 2. Insofar as paragraph 6 of the Applicant's submissions seeks to argue the merit of the substantive application, the Tribunal rejects it. The submission confuses the merit of the Applicant's appeal from the decision of the tribunal of 5 June 2018, the decision that found that reinstatement would be futile because of the expiration the 84 day period under s 500(6L) of the Act, and the merit of the substantive application. The decision of

Justice Thawley (see [11] above) makes it clear that the 'serious question' for the purposes of the grant of the interlocutory injunction (at [27]) was the merit of the appeal. His Honour noted: 1. This issue turns on the proper construction of s 500(6L) of the Act and its application to the present facts.

1. ... For present purposes, it is not necessary to reach a view on that issue. For present purpose, it is sufficient to record that the applicant's case is arguable.
2. The 'applicant's case' to which his Honour was referring was the case on the proper construction and effect of s 500(6L) of the Act, not on the case for revocation of the cancellation of the Applicant's visa under s 501(CA)(4) of the Act.
3. Similarly, insofar as the Applicant's submission at paragraph 6 seeks to suggest that the 'Federal Court remitting the matter back to the Tribunal' is somehow indicative of the merits of the substantive application, that submission is rejected. Clearly both

Justice Thawley and the Full Court were dealing with the merit of the appeal, the proper construction and effect of s 500(6L) of the Act, and not the merit of the substantive application.

1. This was a consideration raised by the Applicant and not addressed, at least not directly addressed, by the Respondent, except insofar as it overlaps the consideration of the Applicant's conduct in prosecuting his application generally identified by the Respondent and addressed at [51] and [52] above.
2. Again, this is a consideration primarily taken from cases in which delay is an element and/or where the other party has changed its legal position as a result of a lack of action by the party seeking reinstatement. That is not relevant in the present case, however, as it is raised specifically by the Applicant, the Tribunal finds that the Applicant has not rested on his rights.

1. The Applicant submits that 'there is no obvious prejudice to the Minister', but concedes that the absence of prejudice alone does not mean that reinstatement should be granted citing Justice Lander in Hopkins v Repatriation Commission[22] (Hopkins v Repatriation Commission). The Respondent concedes that he 'will suffer no specific prejudice if the application is reinstated'[23] but says that the public interest would be served by the substantive application not being reinstated.

1. The basis of the Respondent's argument is set out in [22(g)] above. The Tribunal is guided by the Full Court's comment at [41] of its judgment remitting the application for reinstatement to the Tribunal that the policy behind the 84 day time limit 'is a matter that is appropriate for the Tribunal to take into account' in the exercise of the discretion under

s 42A(9) of the AAT Act 'as are the provisions of the AAT Act which require swift determination of applications for review (see for example s 2A, s 18A, s 33(1)(b) and s 33 (1AB)'.[24] 2. The Respondent submits that the this consideration not only goes to the public interest, but also goes to the issue of fairness as between the Applicant and other persons in a similar position. The Tribunal takes the Respondent's submission (see [22(h)] above) to be to the effect that it would be unfair on other applicants who might also feel ill-prepared and overwhelmed by the process, but who, nonetheless, proceed with their applications within the timeframe mandated by the Act, namely within the 84 day period. The Full Court also noted, it would be a 'brave, or rather foolhardy applicant who would deliberately fail to appear... in order to seek to circumvent the 84 day time limit'.[25] 3. This consideration, in particular the maintenance of the scheme of the Act for applications under s 501 to be dealt with the 84 day time limit, is, in the Tribunal's assessment, inevitably linked to the basis upon which the substantive application was dismissed and, in the case of a dismissal for failure to appear at the hearing, whether the reason for the non-appearance was legitimate. As the Full Court noted, it would be a foolhardy applicant who failed to appear to, in effect, engineer the dismissal of the application on the basis that it would be reinstated to get around the 84 day time limit. While the Tribunal does not think that the Applicant failed to appear with that strategy in mind, the reinstatement of the substantive application would have the effect of the 84 day time limit being circumvented. That, as the Full Court said, is a matter that is appropriate for the Tribunal to take into account in exercising its discretion. 4. As noted above, the Applicant's claim that he was unable to appear at the hearing because of his physical ailments on the day, remains untested. The Tribunal does accept, guided by the comments of the Full Court, that the policy behind the 84 day time limit is a matter that is appropriate for the Tribunal to take into account, that it would be in the broader public interest for the substantive application not to be reinstated. The Tribunal, however, gives only minimal weight to this consideration mainly because of the uncertainty as to the legitimacy of the Applicant's claimed medical condition on the day of the hearing of the substantive application, albeit uncertainty largely caused by the Applicant's choice not to put on any relevant evidence or appear at the hearing of this application. The Tribunal also notes the Full Court's comment that it would be a brave or foolhardy applicant who would embark on such a course to defeat the 84 day time limit as being indicative that it is unlikely that a decision in this case to reinstate would encourage other applicants to go down the same path.

1. The Applicant cites Culley v Australian Securities and Investment Commission[26] (Culley) as authority for the proposition that only if the substantive application is conspicuously devoid of merit, and thus pointless, should the Tribunal reject an application for reinstatement (see [20] above). The relevant statements of Justice Jessup in that case were in [5] and [6] of his judgment:
   1. ...I consider that the court should be slow to reject an application for an extension of time under s 44(2A) of the AAT Act, where otherwise the principles in Hunter are appropriately satisfied, for no reason other than that the appeal, if prosecuted, would be unlikely - even very unlikely - to succeed. I note that this was effectively the approach taken by the court in Mustafa v Chief Executive Officer, Centrelink [2000] FCA 1897 and in Wiegand v Comcare Australia [2005] FCA 1904. I consider that such an approach would be consistent with that taken by Fitzgerald J in Lucic and, because his Honour followed Lucic_, by Wilcox J in_ Hunter_._
   2. While it will be apparent that I do not consider that an application for an extension of time is an occasion for any more than the most cursory examination of the merits of the proposed proceeding, nonetheless I recognise that, if such an examination does reveal the proceeding as being conspicuously devoid of merit, the application might well be rejected upon the ground that the prosecution of it would, in effect, be pointless.
2. The Respondent did not address the issue of the merit of the substantive application in his written submissions. The Respondent had lodged a statement of facts, issues and contentions in December 2017 which addressed the merits of the substantive application covering, as the Tribunal would have been required to do at that time, the considerations under Ministerial Direction 65.
3. The Applicant did not file a statement of facts, issues and contentions (there was no direction requiring him to do so) or any submissions in support of the substantive application. As noted at [18] above, on 5 January 2018 the Applicant advised the tribunal that he would not be submitting 'further information' in relation to the hearing listed for

8 January 2018. The only evidence that the Tribunal therefore has relevant to the merits of the substantive application is that contained in the Remittal Bundle[27] and the only 'submissions' that the Tribunal has from the Applicant in relation to the merit of the substantial application are those contained in the Applicant's request for revocation and the documents attached thereto which included the Applicant's statement,[28] the Personal Circumstances Form completed by the Applicant,[29] various certificates of completion of courses undertaken by the Applicant while incarcerated,[30] various other certificates relating to courses provided by the Applicant,[31] three letters from the Applicant,[32] Compliance client interview form completed by an officer of the Department of Immigration and Border Protection dated 28 June 2017.[33] 4. In addition the Tribunal obviously has the submissions dated 9 January 2020 filed by the Applicant in support of this application for reinstatement. Notwithstanding that the Applicant in those submissions of 9 January 2020 identifies the merit of the substantive application as being one of the matters to be taken into account by the Tribunal in exercising the discretion to reinstate the substantive application, the only written submissions addressing that issue are those in paragraphs 9-11 of the submissions reproduced in full in [20] above. 5. Paragraphs 9-11 of the submissions, however, simply do not address the merits of the substantive application. All that those paragraphs do is cite a number of authorities and make the submission that the Tribunal should 'be s_low to reject the application for no reason other than that the substantive application would be unlikely, or even very unlikely to succeed_' and 'Only if the substantive application is conspicuously devoid of merit, and thus pointless, should the Tribunal reject an application for reinstatement'. Nowhere in his written submissions does the Applicant seek to address the merit of his substantive application. 6. This deficiency was raised with the Applicant's counsel at the hearing. The following exchanges took place:

DEPUTY PRESIDENT: We're looking at reinstatement of his substantive application, which is an application under 501CA(4).

DR CAMERON: Yes.

DEPUTY PRESIDENT: Now, when all of the cases, and I don't think there's any difference between the parties on this, when they look at the merit and the likelihood of success we're looking at the likelihood of success of the substantive application. And unfortunately, well, I can be convinced otherwise but what strikes me in looking at the submissions and looking at the evidence or lack of evidence really, if I was to look at the merit of the - or the likelihood of success of the 501CA(4) application, particularly in light of Ministerial Direction 79, this applicant may well on the basis of his criminal record, which is on any assessment, extremely bad, he fails every test under Direction 79.

It's that application that you're asking this tribunal to reinstate. And I think all of the cases say that, well, one of the major considerations is the merit of that application.

DR CAMERON: No, but with respect the cases also say that the application should only be refused if it's obviously hopeless. But you don't have in application for reinstatement, in my submission, you don't have to argue.

1. With respect, if the Applicant's counsel is saying that until there is an application reinstated, there is no application so there is no need to address the merit of the application, then the Tribunal must disagree. The cases make it clear that one of the critical factors, in fact probably the most critical factor, in considering reinstating an application is the merit of the application.
2. While it is not argued by the Respondent, and the Tribunal accepts that it is not necessary for the Applicant to show that he has a good prospect of success, it is not the case, as the Applicant seems to suggest, that the Tribunal is to assume that the Applicant's substantive application has merit unless it is shown somehow that the application for review will necessarily fail. Insofar as the Applicant relies on the authority of Burke v Comcare[34] to sustain that line of argument, the phrase 'would necessarily fail' needs to be read in the context of the paragraph of the judgment in which it appears, which is (at [53]):

The result of all this analysis is that there is no basis upon which it can be said that there is even an arguable question of law raised and there is not even an arguable point to be agitated on the appeal or proposed appeal. There is simply no point granting leave to extend time to file a notice of appeal to agitate the questions as framed by Mr Burke because any such appeal would necessarily fail.

1. That statement is made following his Honour's analysis of the evidence put forward by the applicant to establish his case in the application of which he sought reinstatement. It was on that basis that Justice Greenwood formed the view that, on the evidence presented by the applicant, it could not be said that he had even an arguable case. Again, however, that conclusion was based on the evidence and arguments that the applicant had put before the tribunal, and again before Greenwood J on appeal, as to the merit of his substantive application.
2. The Applicant has simply put nothing before the Tribunal, either by way or evidence or written submissions, which would establish that the Applicant's substantive application has any merit.
3. This matter was canvassed at the hearing as follows:

DEPUTY PRESIDENT: But I think the concern that I have reading the papers and I clearly can be persuaded, is that based on the requirements of a 501CA(4) application and Ministerial Direction 79, if you go through each of the elements there it is difficult to see how this applicant it could be said that his case has any real prospects on the evidence as presently before the tribunal of success.

...

DEPUTY PRESIDENT: But even reading the material that is in the remittal bundle exhibit R1 if we go through each of the elements of Direction 79 paragraph 13.1 onwards it's hard to see how this applicant would... clearly the protection of the Australian community his record is very serious, it's of a violent nature. It's a very long record, he's done an offending shortly after he arrived. The expectations of the community since FYBR and now, of course, must always be the applicant not hold a visa.

But in this case even if you adopted the more liberal view that you look at the individual case I think the expectations even looking at the merits of this case would have to be that he not hold a visa. As far as I'm aware there aren't any minor children.

DR CAMERON: No, no minor children.

DEPUTY PRESIDENT: So that's the three primary considerations all of which weigh against him.

DR CAMERON: Well, one of them also is risk.

DEPUTY PRESIDENT: Yes.

DR CAMERON: And that's one that I was proposing to address.

DEPUTY PRESIDENT: Okay.

DR CAMERON: Because I think risk is quite important in this case. And the one thing that has not been mentioned by the delegate is his age. And perhaps if I can take you through that in the remittal bundle.

1. Dr Cameron then went through the Applicant's criminal record, which is attached as an Annexure to this decision.
2. Dr Cameron then said:

DR CAMERON: ...And the delegate nowhere takes into consideration his current age and his current age as of today is 40 years and eight months. He's well over 40 now.

Now, I don't have evidence today but I would, if the matter were reinstated, lead evidence from the Australian Institute of Criminology, that shows that recidivism drops off considerably after age 30 and drops off even further after age 40. Now, that's nowhere taken - that age issue is nowhere taken into consideration by the delegate. And, in my submission, it's a relevant consideration.

1. The Tribunal then pointed out that the hearing before the Tribunal is a hearing de novo and the following exchange took place:[35]

DR CAMERON: Exactly. But if the matter were to be reinstated I would be placing evidence on the failure to take that age consideration into account as a relevant consideration in assessing risk because one can only, in my submission, assess risk in terms of recidivism. And there is evidence and statistical evidence on recidivism, that it drops off with age. My recollection is that after 30 the rate of the recidivism is half the rate for those who are between 20 and 25. And that's when a lot of Mr Somba's serious offending started. But I have to accept that the latest series were shortly after he turned 30.

DEPUTY PRESIDENT: Well, I suppose the obvious answer is he's been in prison ever since.

DR CAMERON: Yes, he's been in prison.

DEPUTY PRESIDENT: So his chances for armed robberies are fairly limited.

DR CAMERON: Yes. Especially of banks.

DEPUTY PRESIDENT: Yes.

1. Dr Cameron then pointed to the fact that the more serious robbery offences committed by the Applicant were in company and that since he had been in prison the Applicant had had few visitors and that he no longer associated with those with whom he had committed the armed robberies.
2. Dr Cameron submitted that:[36]

DR CAMERON: A 40 year-old prisoner is a pretty sad specimen and he's not likely to attract too many helpers even if he were so disposed to rob banks again. These are offences, even his drug offences are offences that were committed in company. And it would appear on the evidence that he no longer has those friendships and perhaps he no longer seeks them. And all of that, in my submission, coupled with age would lower the risk of him reoffending in the manner in which he's reoffended in the past.

So I have to accept there isn't a great deal that I can say apart from that in his favour. He's made all kinds of indications that he will amend his ways but he hasn't, as you've pointed out, had the opportunity to prove that he could amend them by out in the community because he's spent such a long time in prison. And I would also have to accept that his prison record isn't particularly helpful either insofar as he's failed drug tests and has refused to take drug tests.

But if one, in my submission, has regard to those factors, the age factor and the factor that he no longer has the friendships and associations that have led him into difficulties in the past, those, in my submission, reduce the risk to the Australian community and it's something that should be taken into account. And, in my submission, having taken that into account get him over the bar so far as reinstatement is concerned. Now, whether they get him over the bar in a natural application is a different question but they are two different standards, in my submission. I don't think I can take it any further than that.

1. Dr Cameron conceded that the other two primary considerations under Direction 79 of the interests of minor children and the expectations of the Australian community, did not weigh in favour of the revocation of the cancellation of the Applicant's visa.[37] Dr Cameron agreed that the other considerations under paragraph 14 of Direction 79, international non-refoulement obligations, strength nature and duration of ties, impact on Australian business interests, impact on victims and extent of impediments if removed, did not apply because the Applicant had returned to Indonesia sometime in the middle of 2019.[38]
2. In effect, the sum total of evidence, other than that in the Remittal Bundle,[39] upon which the Tribunal is to make an assessment of the merit of the Applicant's substantive application is the statement of Dr Cameron that if the substantive application were to be reinstated evidence would be lead to show that the rate of recidivism decreases with age.
3. The material in the Remittal Bundle is, in the Tribunal's assessment, not sufficient to establish any realistic possibility of the Applicant being successful in his substantive application. As conceded by Dr Cameron, the Applicant's criminal record is long and serious and includes repeated violent offences and drug offences. He has repeatedly been sentenced to long terms of imprisonment, his offending is frequent and shows a trend of increasing seriousness. His conduct in prison provides little hope that his criminal behaviour has been addressed. The Probation and Parole Service Immigration Report dated 10 March 2017[40] notes that while in custody up to that time the Applicant had had 19 breaches of discipline including three charges for possession of drugs

(2011, 2015 X 2), three counts of failing a drug test (2011, 2015 X 2), refusing a drug test (2016), possessing an offensive weapon (2010), fight or other combat (2012, 2015 and 2016) as well as minor disciplinary breaches. Dr Cameron agreed that 'his prison record isn't particularly helpful' (see [79] above). 4. Further, some of the statements made by the Applicant in support of his request for revocation of the cancellation of his visa would be of concern to any tribunal considering the likelihood of the Applicant reoffending. In a letter dated 13 July 2016 written in support of his request for review of the cancellation of his visa,[41] the Applicant said (errors included):

I do not pass the character test on the basis of that I have a substantial criminal record. But, does that make me as a person of bad character or an immoral one for that matter? I believe not, since that I have moral values such as to be kind, honest, to have sympathy and empathy towards others and to lend a hand to those that needs it to name a few. These are the moral values that I adhere to within the practice of my general conduct. Which also reflected in my criminal conduct, I think. Because, I do not prey on the weaklings such as the elderly, young ones and I will go to great lengths to not harm others in my past criminal activities. Which at times is difficult to do so, trying to keep my moral values under the circumstances of criminal activities. As it is hard to understand or try to convince anyone of the ordinary to understand the two contrasting concepts can collaborate, unless you've lived it. I mean, how can a person who does crime and a person of good character be the same person?

1. The Applicant clearly thinks that he can engage in serious criminal conduct yet be a person of good character. This is clearly a red flag to his prospect of rehabilitation and likelihood of re-offending.
2. The cases referred to by both parties provide a range of the level of merit of the substantive application that needs to be shown for an application for reinstatement to be successful. In paragraphs 9 to 11 of his submissions, the Applicant suggests that the test is that an application should be reinstated unless the application is 'unlikely, or even very unlikely to succeed' or is 'conspicuously devoid of merit, and thus pointless' or will 'necessarily fail'. The Tribunal does not accept those as being the relevant tests.
3. The level of merit of the substantive application used by the tribunal in Serpinli, which was not criticised by Justice O'Callghan on appeal, was whether it was shown that there was a 'reasonable case to advance'.[42]
4. In looking at whether an extension of time for filing a notice of appeal should be granted, Justice Lander in Hopkins v Repatriation Commission opined at [28] that :

Whether this application should be granted must depend upon whether any of the grounds of appeal would be likely to succeed if an extension of time were granted.

1. The tribunal in Fitzgibbon refused an application for reinstatement because it found

(at [35]) that the application 'had little to no prospect of success' and the tribunal in CDJR and Australian Research Council[43] dismissed an application for reinstatement because it was not satisfied that 'there are any reasonable prospects of success of his application'. Similarly the tribunal in Rob dismissed the application for reinstatement as it found at [12] that the 'application for review had no reasonable prospects of success'. 2. In the Tribunal's view, even if one applies the lowest of the merit tests, whether that be whether there is any prospect of success, or even if one were to adopt the test canvassed by Deputy President Forgie in Oates (see [30] and [31] above) namely, that 'provided the party seeking reinstatement can establish a prima facie case and it is fair to the other party to reinstate the application, it will be reinstated', the Applicant in the present case does not meet that test. 3. The Tribunal must make its decision on the basis of the evidence presented and the arguments put. The Applicant did not put on any evidence which satisfies the Tribunal that he has any realistic prospect of success in the substantive application for the revocation of the cancellation of his visa under s 501(CA(4) of the Act. The considerations which must be taken into account when the decision maker is exercising the power under s 501CA(4) of the Act are clear and well understood. On the evidence before the Tribunal, which was in effect the documents in the Remittal Bundle, there is no reasonable prospect that the Applicant would be successful. The three primary considerations under Ministerial Direction 79 all weigh against the revocation of the cancellation of the visa and the other considerations to be taken into account under paragraph 14 of the Direction, perhaps with the exception of strength, nature and duration of ties - in relation to which there is no evidence, are not applicable, because the Applicant has already relocated to Indonesia. Accordingly, there is no reasonable prospect of the substantive application being successful. 4. The Tribunal does not consider that it is appropriate to reinstate the substantive application and therefore refuses the Applicant's application made under s 42A(9) of the AAT Act for the reinstatement of the application for review of the delegate's decision not to revoke the cancellation of the Applicant's visa.

I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

........................... [sgd].........................................

On each charge prob 12 Months gb s33(1)(e) (sdc 25357)

Control order 3 Months from 090295 add term 9 Months (sdc 25357)

H 999992770774: 1. Probation 12 months gb from 080595 s33(1)(e) supv juvenile justice branch & to live where approved (sdc 59731)

H 999992770776: 1. Control order 1 mth from 210695 s33(1)(g)

H 999992770778: 1 2 & 3. On each charge control orderl mth 22 days from 030196 to 250296 add term 12 Months (sdc 25357)

1. H 999992770780: fine : $400 costs - court :
2. $50 (ba 24933)

1. H 999992770780: fixed term : 4 months commencing 15/10/1996 (ba 24933)

1. H 999992770780: fine : $500 disqualification : 2 years accum
2. (ba 24933)

1. H 999992770780: Recognisance s558 : $1,000 2 years supv nsw prob service disqualification : 3 years

H 4671046: fine : $800 costs - court : $51 (sdc 27029)

1. H 2315896: indicted for: minimum term : 2 years 3 months commence 251197 conclude 24022000 additional term with conditions : 2 years
2. commencing 25/02/2000 concluding 24/02/2002 release subject to supv (District Court 322997) court case reference number 98/11/0120

1. Make false statement to obtain money
2. <=$2000-t2

Enter inclosed land not presc premises w/o lawful excuse

1. H 9756579: alternative imprisonment: 2 years & 4 months commencing 170801 concluding 161203 non parole period : 18 months concluding 16/02/2002 (District Court 355339) court case reference number 01/11/0074

1. H 14987741: imprisonment: 6 months
2. commencing 23/10/2005 concluding 22/04/2006 (District Court 372126) court case reference number 02/11/0990

H 14987741: imprisonment: 6 months commencing 23/04/2006 concluding 22/10/2006 monetary : $80,450 (forfeiture order) (District Court 372126) court case reference number 02/11/0990

1. H 14987741: imprisonment: 6 years commencing 23/04/2002 concluding 23/04/2008 non parole period : 3 years
2. 6 months concluding 221005 (District Court 372126) court case reference number

H 31049111: imprisonment: 6 months commencing 04/08/2007 severity appeal without stay lodged :

1. H 31049111: conviction confirmed : in lieu imprisonment: 12 months commencing 04/08/2007 concluding 03/08/2008 non parole period with conditions : 4 months commencing 04/08/2007 release subject to supv (District Court 90011466) court case reference number 07/12/1113

Be carried in conveya nee taken w/o consent of owner·t2

H 35075219: taken into account on form 1 : this file (agd/jl 070312) court case reference num ber2008/84619

Be carried in conveyance taken w/o consent of owner-t2

35075219: taken into account on form 1 : this file (agd/jl 070312) court case reference num ber 2008/84619

In company rob while armed with dangerous weapon-si

1. H 35075219: imprisonment: 5 years & 6 months commence 01092008 conclude 28022014 matters taken into account on form 1 : (de 90016334) (agd/jl 070312) severity appeal lodged : (de 90017656) court case reference number 2008/84619

In company assault With Intent rob while armed dangerous weapon-si

1. H 35075219: imprisonment: 5 years commencing 01/09/2010 concluding 31/08/2015 (District Court 90016334) (agd/jl 070312) severity appeal lodged: (District Court 90017656) court case reference number 2008/84619

In company assault With Intent rob while armed dangerous weapon-si

1. H 35075219: imprisonment: 8 years commencing 01/09/2011 concluding 31/08/2019 non parole period with conditions : 5 years commencing 01/09/2011 concluding 31/08/2016 release subject to supv (District Court 90016334) (agd/jl 070312) severity appeal lodged : (District Court 90017656) court case reference number 2008/84619

In company rob while armed with dangerous weapon-si

1. H 35075219: ordered that : leave to appeal granted : appeal dismissed (de 90018534) court case reference number 2008/84619

In company assault With Intent rob while armed dangerous weapon-si

1. H 35075219: ordered that: leave to appeal granted : appeal dismissed : court case reference number 2008/84619 (de 90018534) court case reference number 2008/84619

In company assault With Intent rob while armed dangerous weapon-si

1. H 35075219: ordered that: leave to appeal granted : appeal dismissed : (de 90018534) court case reference number 2008/84619

[1] Somba and Minister for Immigration and Border Protection [2018] AATA 1626 at [4]- [5].

[2] [2018] AATA 1626 (R1, 4).

[3] [2018] FCA 1022 (R1, 15).

[4] [2018] FCA 1537) (R1, 17 and 18).

[5] [2019] FCAFC 150) (R1, 21).

[6] Serpinli v Secretary, Department of Social Services [2019] FCA 2029 (Serpinli) at [24] per O'Callaghan J.

[7] Rob and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1 (Rob) at [6]

[8] See Serpinli at [26]; Rob [6]; Fitzgibbon and Secretary, Department of Social Services [2018] AATA 2385 at [8] (Fitzgibbon); Weinrichova and Secretary, Department of Social Services [2018] 4254 at [14]. See also Zablotsky and Secretary, Department of Social Services [2019] AATA 4367 where the Tribunal found that there is merit in applying the well-established principles relevant to extension of time cases)

[9] Citing BRL15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 1478 at [5] per Pagone J.

[10] Somba v Minister for Home Affairs [2019] FCAFC 150 at [41].

[11] [2019] AATA 4367.

[12] [1984] FCA 176.

[13] [2002] FCAFC 367.

[14] [1994] AATA 252; (1994) 37 ALD 241.

[15] [1986] FCA 106; (1986) 70 ALR 793 (Morling, Beaumont and Wilcox JJ).

[16] For a discussion on this see Dennis Pearce, Administrative Appeals Tribunal (LexisNexis, 4th ed, 2015) 15.8.

[17] See [11] of Deputy President Constance's decision (R1, 4/222).

[18] 8 January 2018 AAT registry file note of conversation with Villawood Detention Centre R1, 17/293.

[22] [2011] FCA 386.

[23] Respondent's submissions paragraph 22.

[24] Somba v Minister for Home Affairs [2019] FCAFC 150 at [41] (R1, 21).

[26] [2008] FCA 1784.

[34] [2014] FCA 169.

[42] At [35] of Justice O'Callghan's judgment.

[43] [2012] AATA 525 at [19].