BRIGHTEN SERVICES (AUSTRALIA) PTY LTD (Migration)

BRIGHTEN SERVICES (AUSTRALIA) PTY LTD (Migration) [2017] AATA 1199 (20 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Brighten Services (Australia) Pty Ltd
CASE NUMBER:  1512461
DIBP REFERENCE(S):  BCC2015/2014597
MEMBER:Danica Buljan
DATE:20 July 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal confirms the decision to dismiss the application.

Statement made on 20 July 2017 at 4:20pm

CATCHWORDS
Migration – Nomination – Not a genuine position – Re-instatement of application not approved – Market Research Analyst – Nominated occupation removed from eligible list – Procedural fairness – Non-attendance at 2 callovers – Non-attendance at 2 hearings

LEGISLATION

Administrative Appeal Tribunal Act 1975, s 19D(1)
Freedom of Information Act 1982
Migration Act 1958, ss 140GB, 359A, 362A, 362B, 362C(5)
Migration Regulations 1994, r 2.72(10)(f)
CASES

Atomic Skifabrik Alois Rohrmoserv Registrar of Trade Marks [1987] FCA 22
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to approve a nomination under section 140GB of the Migration Act 1958 (‘the Act’).
On 4 July 2017 the Tribunal dismissed the application under paragraph 362B(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing on 4 July 2017.
The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with subsection 362C(5) of the Act. The applicant was also advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement, and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
The applicant applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.
It is relevant to set out the history of this matter in more detail in order to provide context for the Tribunal's reasons. The applicant applied to the Department of Immigration for approval of a business nomination under section 140GB of the Act on 14 July 2015. The delegate decided to refuse that application on 21 August 2015. This was on the basis that the delegate was not satisfied that position associated with the nominated occupation (‘Market Research Analyst’ ANZSCO Code 225112) was genuine, as required by paragraph 2.72(10)(f) of the Migration Regulations 1994 (‘the Regulations’).
The applicant lodged an application for review with the Tribunal on 10 September 2015, which included a copy of the primary decision record.[1] It also appointed a registered migration agent as its representative for the purposes of this application.[2]
[1] AAT Case Number 1512461(T1), f.1-11
[2] T1, f.12
On 14 February 2017 the Tribunal invited the applicant to attend a callover scheduled for 2 March 2017, the purpose of which was to establish whether the case was ready to be listed for hearing and the type of information the Tribunal would require for the purposes of the review.[3]
[3] T1, f.18-20
However, neither an authorised officer from the applicant or its representative attended the callover on 2 March 2017.[4]
[4] T, f.25
On 10 March 2017 the Tribunal invited the applicant to appear before it on 12 April 2017 to give evidence and present arguments relating to the issues arising in relation to the decision under review. This invitation noted that the applicant had been invited to attend a callover on 2 March 2017 and that no person had appeared on behalf of the applicant. It also stated that the Tribunal was unable to make a favourable decision based on the information before it. In addition, this letter invited the applicant to provide, at least 7 days before the scheduled hearing, information that showed it met all the requirements of regulation 2.72 of the Regulations at the time of decision. It also examples of the information the applicant could provide to the Tribunal for this purpose.[5]
[5] T1, f.26-33
On 5 April 2017, five business days prior to the scheduled hearing, the Tribunal sent an SMS hearing reminder to the mobile number of the contact officer the applicant had identified in its application for review, namely, Mr D. Williams.[6] Notably, the applicant had identified Mr Williams as its managing director in that application.[7] Importantly, a second SMS hearing number was also sent to Mr Williams’ mobile number on 11 April 2017, one business day prior to the scheduled hearing.[8]
[6]     T1, f.118
[7]     T1, f.24
[8]     T1, f.117
On 12 April 2017 the Tribunal dismissed the application under paragraph 362B(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.[9]
[9] T1, f.34-38
On 26 April 2017 the Tribunal received an application for reinstatement from the applicant’s then representative. Specifically, the representative set out the background for his failure to attend the callover on 2 March 2017 and the hearing scheduled on 12 April 2017. He also provided documentary evidence to support the application for reinstatement. [10]
[10] T1, f.40-44
In response to this request, the Tribunal wrote to the applicant on 28 April 2017[11] in the following terms:
Thank you for your correspondence of 26 April 2017 seeking reinstatement of this application.
I note that on 18 April 2017 the Minister announced significant changes to the skilled occupations that can be nominated and approved for the purposes of a subclass 457 visa application. The Tribunal notes that the nominated occupation has been removed from the list of eligible skilled occupations and therefore the nomination application may no longer meet the requirement in r.2.72(10)(aa) of the Migration Regulations 1994.
You are invited to provide submissions in relation to whether reinstatement of the review application is potentially futile as the nomination does not meet a mandatory requirement of r.2.72. Your submission should be provided by 5 May 2017.
If your client consents to the confirmation of the dismissal of the review application please notify the Tribunal by return email by 5 May 2017.
If you would like further information regarding the changes to the sc457 visa program please refer to the Department website at
…
[Tribunal emphasis in bold]
[11] T1, f.45
On 8 May 2017 the applicant’s then representative made a number of submissions in relation to this matters. In particular, he argued that departmental policy allowed for occupational changes within the same ANZSCO occupational unit group.[12]
[12] T1, f.47-50
On 9 May 2017 the Tribunal reinstated the application for review in accordance with paragraph 362B(1C)(i) of the Act on the basis of the personal circumstances affecting the representative put forward, the supporting documentary evidence, and the representative’s legal submissions.
On 31 May 2017, this matter was reconstituted to the Presiding Member under subsection 19D(1) of the Administrative Appeal Tribunal Act 1975.[13]
[13] T1, f.57 & 113
On 2 June 2017[14] the Tribunal wrote to the applicant in the following terms:
I am writing in relation to the application for review made by Brighten Services Pty Ltd in respect of a decision to refuse an application for approval of a business nomination under section 140GB of the Migration Act 1958 (‘the Act’).
On 18 April 2017 the Minister for Immigration announced significant changes to the skilled occupations that can be nominated and approved for the purposes of a subclass 457 visa application. In particular, the nominated occupation (‘Market Research Analyst’ ANZSCO Code 225112) has been removed from the list of eligible skilled occupations.
As a result, your application of a business nomination may no longer meet the requirement in paragraph 2.72(10)(aa) of the Migration Regulations 1994 (‘the Regulations’), which requires the nominated occupation to be specified in the relevant instrument in writing for the purposes of paragraph 2.72(10)(a) or (aa) that is in effect at the time the Tribunal makes its decision. The relevant instrument for this purpose is IMMI 16/059. Accordingly, you are invited to provide submissions in relation this issue by 16 June 2017.
If you no longer wish to proceed with the application for review, please complete the enclosed withdrawal form and return it to the Tribunal by 16 June 2017.
If you would like further information regarding the changes to the subclass 457 visa program, including the relevant legislative instrument, please refer to the Departmental website at emphasis in bold]
[14] T1, f.58-61
Give there was no response to this letter by 16 June 2017, the Tribunal wrote to the applicant on 22 June 2017[15] as follows:
The Tribunal refers to its correspondence dated 2 June 2017 regarding the removal of the nominated occupation of Marketing Research Analyst (ANZSCO Code 225112) from the relevant list of specified eligible skilled occupations. In particular, you were invited to provide submissions on behalf of applicant regarding this issue by 16 June 2017. However, the Tribunal has not received any response from the applicant.
The Tribunal notes that the applicant has a hearing scheduled for 4 July 2017 in respect of another application for review (AAT Case No. 1515138) at 9.30am on 4 July 2017. Accordingly, the Tribunal can also list this matter (AAT Case No. 1512461) for a hearing at the same time to minimise the inconvenience to the parties of attending two separate hearings.
As a result, the Tribunal would appreciate receiving confirmation from you by close of business tomorrow 23 June 2017 that the applicant consents to a hearing being conducted in this matter on 4 July 2017.
…
[15] T1, f.62
A Tribunal officer also contacted the applicant’s then representative by telephone on 26 June 2017 regarding the combined hearing on 4 July 2017, at which time the representative confirmed he had received the Tribunal email (dated 22 June 2017) and that the applicant had consented to the combined hearing.[16] On the same date he emailed the Tribunal to confirm, in writing, that the hearings of the related applications for review (AAT Case Numbers 1512461 and 1512463) could be combined at a hearing held on 4 July 2017, as this would be convenient to all the parties.[17]
[16] T1, f.63-64
[17] T1, f.65
Accordingly, on 26 June 2017 the Tribunal invited the applicant to appear before it on 4 July 2017 to give evidence and present arguments relating to the issues arising in relation to the decision under review.[18]
[18] T1, f.66-72
As was the case on 5 and 11 April 2017, on 27 June 2017 and 3 July 2017 the Tribunal sent separate SMS hearing reminders to the mobile number of the applicant’s contact officer, Mr Williams, respectively five and one business day prior to the scheduled hearing on 4 July 2017.[19]
[19] T1, f.24 & 115-116
On 4 July 2017 the applicant’s then representative appeared before the Tribunal at the scheduled time and place. The following evidence was submitted at this time:
·A copy of a signed letter of engagement (dated 2 July 2017[20]) signed by the visa applicant, Ms Sophia Lucie Laiguille, (Related AAT Case No. 1515138) and Mr Williams, on behalf of the applicant, to employ the visa applicant as a fulltime ‘Marketing Specialist’;
·A letter of support (dated 2 July 2017[21]) from Mr Williams addressed to the Tribunal and certifying why the applicant required the visa applicant to work as a ‘Marketing Specialist’; and
·The extracts from the applicant’s BAS Agent Portal setting out itemised accounts of processed transactions (1 October 2016 – 17 January 2017 and 1 February 2017 – 21 March 2017), together with its March 2017 quarterly business activity statement.[22]
[20]    T1, f.80 & 82-83
[21]    T1, f.81
[22]    T1, f.73-79
However, Mr Williams, as the applicant’s relevant contact officer, did not appear before the Tribunal to give evidence and present arguments at the time and date of the scheduled hearing on 4 July 2017. There was also no appearance from any other person the applicant’s business who could give evidence and present arguments in relation to the business nomination application.
At the hearing the Tribunal explained to the applicant’s then representative that, for the purposes of the hearing and application for review, it could only take evidence from an authorised officer nominated by the applicant. The representative stated that he did not intend to give evidence on behalf of the applicant in relation to the business nomination application at the hearing.
The applicant’s former representative also advised that, despite his efforts to communicate with the applicant, the company had been very difficult to contact in the three months prior to 4 July 2017. At this point, the visa applicant gave evidence that, after she had received notice of the scheduled hearing, she had been in contact with Mr Williams over the preceding weekend. In response to this, the then representative reiterated that he had found it difficult to contact the applicant. The Tribunal noted that these challenges were a matter for the representative to resolve with his client.
During this discussion with the applicant’s representative at the hearing, the Tribunal also noted that the applicable instrument, IMMI 17/060, did not specify the nominated occupation of ‘Market Research Analyst’ ANZSCO Code 225112 for the purposes of paragraphs 2.72(10)(a) or (aa) of the Regulations.
As stated previously, given the applicant’s non-appearance at the scheduled hearing, on 4 July 2017 the Tribunal dismissed the application under paragraph 362B(1A)(b) of the Act. The applicant was notified of the decision to dismiss the application and its right to seek reinstatement through its then representative on 5 July 2017.[23]
[23] T1, f.87-91
On 5 July 2017 the applicant’s then representative telephoned the Tribunal stating that he wanted to explain that he had genuinely tried to contact the applicant company. He also stated that he did not contest the dismissal of this matter, or the related matter in AAT Case No. 1515138.[24]
[24] T1, f.92
On 14 July 2017 the Tribunal received a signed confirmation from Mr Williams that he had appointed a new representative to act on behalf of the applicant in relation to the application for review.[25] The new representative also queried at this time whether he could obtain access to the relevant files.
[25] T1, f.98-99
On 14 July 2017 the Tribunal informed the current representative that any request for access to the files needed to be made on the appropriate forms, either under section 362A of the Act or under the Freedom of Information Act 1982. Notwithstanding, the Tribunal also forwarded to the new representative a copy of the ‘Intention to Dismiss’ notification sent to the applicant on 5 July 2017.[26]
[26] T1, f.102-103
On 18 July 2017 the applicant’s current representative lodged a request for reinstatement in the following terms:
We have recently been retained in this matter and refer to our prior emails and telephone conversations with the AAT.
We are instructed by the sponsor that the “migration agent” previously retained to manage this appeal appears to, for whatever reason, negligently advised my client in the handling of this appeal.
We are seeking the file and all relevant information.
Procedural fairness: avoiding practical unfairness
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concept of the law is to avoid practical injustice.
[Gleeson CJ - Lam’s case]
Given the dire impact, not to mention the possible miscarriage of administrative just [sic], that would be visited, not only on the sponsor – an Australian business – but also the visa applicant and her dependant family were they denied an opportunity to argue their case.
It is submitted that you member should exercise your discretion on this occasion.
It is submitted that to deny the applicant/sponsor the opportunity to put their case would be unfair and unjust.
Further it is submitted that the prejudice suffered by the crown is trivial and therefore should not be seen as an impediment to reinstatement.
It is worth noting that Lord Diplock has described the rules of natural justice as a legal doctrine meaning “no more than the duty to act fairly” And:
Since the House of Lords decision in 1964 in Ridge v Baldwin, procedural fairness is no longer restricted by distinctions between “judicial” and “administrative” functions or between rights and privileges. In administrative law, natural justice is a well defined concept which initially comprised essentially two fundamental rules of fair procedure: that a person may not be judge in his/her own cause; and that a person’s defense must always be fairly heard. There has been some expansion of the application of “fairness” in recent times.
And as Mason J posited in Kioa v West the general principle to observe the requirements of fairness given the law had reached:
a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention
Unreasonableness:
In Minister for Immigration and Citizenship v Li the plurality of the High Court partially answered these questions, for an Australian audience at least, by stating that ‘[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification‟.
Conclusion.
Given that the applicant and the sponsor appear to be blameless victims of a migration agents [sic] incompetence and or negligence it is submitted that it would both be unfair and possibly unreasonable to not reinstate these matters. i.e. both the nomination appeal and the visa appeal.[27]
[Representative’s emphasis]
[27] T1, f.108-113
The Tribunal has reviewed the evidence before it, and it is satisfied that that the hearing invitations sent to the applicant on 10 March 2017 and 26 June 2017 complied with the relevant statutory requirements. It is also satisfied that these invitations were sent to the last relevant address for service provided by the applicant in connection with the application for review.[28]
[28] T1, f.23, 33 & 72
In addition, the Tribunal finds that each of the hearing letters sent to the applicant specifically contained the following advice:
If you are not able to attend the hearing BRIGHTEN SERVICES (AUSTRALIA) PTY LTD you should advise us as soon as possible. Please note that we will only change this date if satisfied that BRIGHTEN SERVICES (AUSTRALIA) PTY LTD has a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, BRIGHTEN SERVICES (AUSTRALIA) PTY LTD must assume the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable BRIGHTEN SERVICES (AUSTRALIA) PTY LTD to appear before us or may dismiss the application for review without any further consideration of the application or the information before us...[29]
[29] T1, f.30-30 reverse & 70-70 reverse
The Tribunal further notes that both hearing invitation letters invited the applicant to provide information that showed it met all the criteria in regulation 2.72 of the Regulations at least 7 days before the scheduled hearing date.

In particular, the Tribunal finds that the hearing invitation letter sent on 10 March 2017 provided the applicant with details regarding the type of information that might be relevant for this purpose.[30] However, the applicant did not provide the requested information prior to the scheduled hearing on 12 April 2017.
[30] T1, f.31
Correspondingly, the Tribunal also finds that on 26 June 2017 the applicant consented to a combined hearing in this matter with the related review applications in AAT Case numbers 1512463 and 1515138.[31] In addition, the Tribunal is satisfied that, in response to the hearing invitation letter sent to the applicant on 26 June 2017, the applicant provided the additional information set out at paragraph 22 above on 4 July 2017.
[31] T1, f.65
The Tribunal is further satisfied that the contact person nominated by the applicant in its application for review, Mr Williams, was sent SMS reminders on 5 and 11 April 2017, 27 June 2017 and 3 July 2017 in respect of both of the hearings scheduled in this matter. It finds that each of these SMS reminders advised the applicant (through Mr Williams) of the date of the scheduled hearing. They also advised Mr Williams that he should call 1800 228 333 if he had any questions. Based on the evidence before it, the Tribunal is satisfied that Mr Williams did not contact the Tribunal to query the contents of the SMS reminders sent to him, or the details regarding the relevant hearings scheduled for the applicant.
The Tribunal has also considered the submissions put forward by the applicant’s current representative for reinstatement, including the alleged incompetence / negligence by the applicant’s previous migration agent and the issues of procedural fairness.
On the matter of procedural fairness, including the question of practical unfairness, the Tribunal has had regard to the principles and case law set out in the submissions (dated 18 July 2017) from the applicant’s current representative.
In this case, the Tribunal observes that the applicant was not only invited to a callover on 2 March 2017, but that it was also provided with two separate opportunities to appear before the Tribunal at hearings scheduled for 12 April 2017 and 4 July 2017.
Yet, it failed to attend either of these scheduled hearings. This is despite SMS reminders being sent to its nominated contact person, Mr Williams, on 5 and 11 April 2017, 27 June 2017 and 3 July 2017. Importantly, despite having the application for review reinstated on 9 May 2017, the applicant failed to attend the second hearing scheduled for 4 July 2017.
In submitting that the application for review should be reinstated, the applicant’s current representative has argued that the parties were not responsible for this non-attendance because they were the “blameless victims of a migration agent’s incompetence and or negligence.”[32]
[32] T1, f.108
However, the Tribunal does not accept this contention for the following reasons. Firstly, the Tribunal notes that the applicant submitted evidence in support of the application for review at the commencement of the scheduled hearing on 4 July 2017. This included information relating not only to its business activity statements, but also two documents signed by Mr Williams on 2 July 2017 (See paragraph 22 above). These documents referred to the applicant’s need to employ the visa applicant as a ‘Marketing Specialist’, rather than the ‘Market Research Analyst’ it had originally nominated.
Notably, on two separate occasions (28 April 2017 and 2 June 2017) the Tribunal had raised with the applicant’s then representative the issues surrounding the legislative changes to the skilled occupations that can be nominated and approved under paragraph 2.72(10)(aa) of the Regulations. Importantly, the applicant prepared evidence relating to its need for a ‘Marketing Specialist’ (rather than a ‘Market Research Analyst’) on 2 July 2017, which was then submitted to the Tribunal on 4 July 2017. The Tribunal considers that this evidence constitutes implicit recognition by the applicant that paragraph 2.72(10)(aa) was one of the issues to be discussed at the hearing on 4 July 2017.
Secondly, these documents are dated 2 July 2017, just two calendar days prior to the hearing scheduled for 4 July 2017. It seems unlikely that the applicant would have prepared evidence about a newly nominated occupation in the days prior to the hearing if it had not been aware of the issues affecting its application for review. Therefore, the Tribunal does not consider it plausible that these documents were created in ignorance of the hearing scheduled for 4 July 2017. This view is reinforced by the fact that a SMS reminder was sent to Mr Williams on 27 June 2017, five business days prior to the hearing on 4 July 2017.
Further, and as discussed previously, Mr Williams was also sent a SMS reminder about the scheduled hearing on 3 July 2017. Yet, apart from what is set out in the submissions provided to the Tribunal on 18 July 2017, Mr Williams has not explained his reasons for not appearing before the Tribunal on this date in circumstances where SMS reminders were sent to him on 27 June 2017 and 3 July 2017.
Thirdly, this was the second hearing the applicant had been invited to attend. Regardless of the validity of the reasons for its non-appearance before the Tribunal on 12 April 2017, there is little in the material the current representative has presented to suggest that the applicant not aware that its application for review had been previously dismissed on 12 April 2017 and then reinstated on 9 May 2017.
Accordingly, given the evidence before it, the Tribunal is not satisfied that the applicant, or Mr Williams on its behalf, were not aware of the scheduled hearing for 4 July 2017. The Tribunal also does not accept that they did not appreciate the importance of this hearing to the review, or the likely consequences for the application for review, if the applicant failed to attend the scheduled hearing on 4 July 2017 in circumstances where the application had been reinstated on 9 May 2017. As a consequence, the Tribunal does not accept that the applicant has been a “blameless victim” in this case, as contended by its current representative.
Fourthly, in assessing the claim of alleged incompetence / negligence on the part of its previous representative, the Tribunal has also had regard to the general principles of agency in Australian law.[33] These principles indicate that the relationship between principal and agent can arise in several ways, including by agreement, the conduct of the parties or the operation of law. In addition, the Courts have held in the immigration context that the acts or omissions of an agent, who an applicant has engaged to do certain things on their behalf, are not circumstances that can generally said to be beyond a person’s control.[34] In other words, before the Courts will accept a claim of professional negligence by a migration agent, they generally require evidence that clearly indicates that this was the case.
[33] T1, f.119, See The Laws of Australia, Legal Online, Geoff Masel (1993 – 2001)
[34] See Atomic Skifabrik Alois Rohrmoserv Registrar of Trade Marks [1987] FCA 22 ( 5 February 1987) at [18]
In this case, the Tribunal observes that the submission from the applicant’s current representative does not articulate the nature of the alleged incompetence / negligence by the previous representative. It also does not detail how this prevented the applicant’s nominated contact person, Mr Williams, or another authorised officer from the applicant’s business, from appearing before the Tribunal to give evidence and present arguments in relation to the application for review at the scheduled time. Nor is there any statement from Mr Williams, or any other person from the applicant’s business, explaining the reasons for failing to appear before the Tribunal on 4 July 2017 and tying these to the conduct of the previous migration agent. The Tribunal also notes that the parties have not put forward any evidence or information that would suggest that the applicant’s previous migration agent had acted outside the authority conferred upon him as its authorised representative.
In addition, in assessing the claims regarding the previous migration agent’s competence the Tribunal has had regard to the evidence that emerged at the hearing on 4 July 2017 that there were communication difficulties between the then representative, the applicant company and the visa applicant.
Notwithstanding, for the reasons outlined in this decision record, the Tribunal does not accept that these issues meant that the applicant was not aware of the scheduled hearing on 4 July 2017. On the evidence before it, the Tribunal finds that the applicant was aware prior to 4 July 2017 of the next steps in the review. As a result, the Tribunal does not accept that the conduct of the applicant’s former representative led to its non-appearance at the hearing scheduled for 4 July 2017. Accordingly, it is not satisfied that the applicant’s former representative was incompetent / negligent as claimed by the applicant.
Therefore, in considering whether it is appropriate to reinstate the application for review under subsection 362B(1C) of the Act, the Tribunal places little weight upon the allegations put forward of incompetence / negligence by the applicant’s former migration agent.
Finally, the Tribunal also observes that the current representative’s submissions misunderstand the status of the visa applicant’s application for review in AAT Case Number 1512463. As noted previously, the hearing scheduled for 4 July 2017 was a combined hearing that included AAT Case Number 1512463.
Importantly, as the visa applicant did appear before the Tribunal at the scheduled time and place on 4 July 2017, the question of that application being dismissed under paragraph 362B(1A)(b) of the Act does not arise.
Specifically, and as explained to the visa applicant at that hearing, in the event that the Tribunal confirmed a decision to dismiss the application for review in relation to the applicant in this matter, it has a statutory obligation under section 359A of the Act to inform the visa applicant of such adverse information in relation to the application for review in AAT Case Number 1512463.
Therefore, the Tribunal does not accept the representative’s argument that the issue of procedural fairness in relation to the visa applicant supports the applicant’s request to reinstate this application for review.
The Tribunal is satisfied that subsection 362B(1C) of the Act allows the Tribunal to reinstate the application for review if ‘it considers it appropriate to do so.’ The Tribunal has carefully considered the applicant’s request, and the circumstances surrounding its application and its non-appearance.
In this case, the Tribunal is satisfied that the applicant has been provided with several opportunities to present its evidence and arguments in relation to the application for review since February 2017. In particular, the Tribunal has taken into account the history of this matter. It has had regard to the lack of any statement from an authorised officer of the applicant regarding the reasons for its non-appearance on 4 July 2017. The Tribunal has also considered the fact that the applicant has put forward little in the way of documentary material to substantiate its claims and support its request for reinstatement.
As a result, having regard to all the evidence before it, on both an individual and cumulative basis, for the reasons set out earlier, the Tribunal is not satisfied that it is appropriate to reinstate the application for review.
Accordingly, the decision to dismiss the application is confirmed and it follows that the decision under review is taken to be affirmed pursuant to subsection 362B(1F) of the Act.
DECISION
The Tribunal confirms the decision to dismiss the application.
Danica Buljan
Member

- Accessed 19 July 2017

[2017] AATA 1199

20 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Procedural Fairness

Judicial Review

Jurisdiction

Natural Justice