Somba and Minister for Immigration and Border Protection (Migration) [2018] AATA 1626 (5 June 2018)

Migration Act 1958 (Cth) ss 500(6L), 501(3A)

1. Prior to 15 June 2016 Mr Somba was the holder of a BF transitional (permanent) visa. On that date the visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth).
2. In October 2017 a delegate of the Minister refused to revoke the cancellation decision. On 1 November 2017 Mr Somba applied to the Tribunal to review the delegate's decision.
3. Mr Somba's application for review was listed for final hearing on 8 January 2018. Prior to the hearing Mr Somba was duly notified of the date, time and place of the hearing and the Tribunal made the usual arrangements with the management of the Villawood Detention Centre (where Mr Somba was being detained) for his attendance at the Tribunal for the hearing.
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.
6. On 6 February 2018 Mr Somba applied to the Tribunal to re-instate his application.
7. For the reasons which follow the application for re-instatement will be dismissed.

1. Section 42A of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides, in part:

(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

...

(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.

1. Subsection 500(6L) of the Migration Act provides:

(6L) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and

(b) the decision relates to a person in the migration zone; and

(c) the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.

1. Mr Somba gave evidence that:
   • 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]

1. Whatever the circumstances of Mr Somba's failure to attend the hearing, I have come to the conclusion that the application for reinstatement should be refused as an order for re-instatement would be futile. For this reason I do not consider that it is appropriate to reinstate the application.
2. The effect of subsection 500(6L) of the Migration Act, set out above, is that unless Mr Somba's application for review was finalised before the Tribunal within 84 days of his being notified of the delegate's decision, the delegate's decision under review is affirmed.
3. Mr Somba was notified of the reviewable decision on 25 October 2017. The 84th day after that notification was 17 January 2018. Mr Somba did not apply to the Tribunal for re-instatement of his application until 6 February 2018, 20 days after the expiry of the 84 day period.
4. It is clear from the context of the Migration Act that applications for review of visa cancellation decision when applicants are onshore are to be dealt with within a strict time frame. In this matter, Mr Somba applied for re-instatement after the 84 day period had expired. In these circumstances, even if his application had been re-instated on the day he applied, immediately subsection 500(6L) would have applied and the decision would have been affirmed by force of the statute.
5. In reaching this conclusion I have considered whether subsection 500(6L) does not apply in this matter because the Tribunal has made a decision under section 42A of the AAT Act. However consistent with the context of the Migration Act in which subsection 500(6L) occurs, I am satisfied that the reference to the Tribunal having not made a decision under section 42A of the AAT Act is a reference to a decision under that section which remains in force.
6. There is additional support for the conclusion I have reached in the words used in subsection 42A(9) of the AAT Act. This subsection gives the Tribunal a discretion to decide whether a dismissed application should be reinstated. If it is decided to reinstate an application the previous order dismissing the application ceases to have effect for all purposes, including the purposes of other legislation, such as the Migration Act.

1. Mr Somba's application to re-instate his application to review the decision of the delegate of the Minister for Immigration and Border Protection made 24 October 2017 will be dismissed.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

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