Kabue and Minister for Home Affairs (Migration)

The matter before the Administrative Appeals Tribunal (the Tribunal) concerned an application by the Applicant for reinstatement of his withdrawn application for review. The Applicant’s visa had been mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) due to a substantial criminal record, specifically convictions for aggravated sexual penetration without consent and aggravated indecent assault. Following the delegate of the Minister’s decision not to revoke this cancellation, the Applicant lodged an application for review with the Tribunal.

The primary legal issue before the Tribunal was whether the Applicant’s subsequent email, withdrawing his application for review, could be set aside or if the application could be reinstated, notwithstanding the statutory effect of such a withdrawal. The Tribunal was required to consider the Applicant's stated regret and his desire to pursue the review for the sake of his children and family, in light of the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) governing withdrawals.

The Tribunal considered the effect of s 42A(1A) and (1B) of the AAT Act, which stipulate that a written notification to withdraw an application results in the Tribunal dismissing the application without proceeding to review the decision. However, the Tribunal also noted that the Applicant had subsequently emailed requesting reconsideration and reopening of his case, indicating he had not given the withdrawal sufficient thought. This led to the Tribunal relisting the matter for an interlocutory hearing to allow the Applicant adequate opportunity to respond to submissions and seek legal representation.