Koko and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Case •

[2025] ARTA 123

•

29 January 2025

Koko and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 123 (29 January 2025)

Applicant/s:  Alagi Faroug Koko

Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs

Tribunal Number:                2024/9377

Tribunal:Senior Member C Shepherd

Place:Adelaide

Date:29 January 2025

Decision:The Tribunal dismisses the application under section 99 of the Administrative Review Tribunal Act 2024 (Cth).

........................................................................

Senior Member C Shepherd

Catchwords

MIGRATION – Visa cancellation under 501(3A) of the Migration Act 1958 (Cth) - Class XB Subclass 202 Global Special Humanitarian visa – substantial criminal record – failure to appear at part of the hearing – application dismissed under s99 Administrative Review Tribunal Act 2024 (Cth)

Legislation

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth)

Cases

Somba v Minister for Home Affairs [2019] FCAFC 150

Statement of Reasons

  1. On 17 November 2005, the Applicant entered Australia on a Class XB Subclass 202 Global Special Humanitarian visa (visa).[1]

    [1] Applicant’s Movement History, Department of Home Affairs, Exhibit R1, p 117.

  2. On 26 July 2023, the Local Court of New South Wales convicted the Applicant of two counts of Contravene Prohibition/Restriction in AVO (Domestic) and Assault Occasioning Actual Bodily Harm (DV). He was sentenced to an aggregate term of imprisonment of 14 months.

  3. On 13 September 2023, a delegate of the Minister cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act).[2]

    [2] Letter from Department of Home Affairs to Applicant, 13 September 2023, Exhibit R1, p 113-115.

  4. On 11 November 2024, a delegate of the Minister decided not to revoke the cancellation decision (decision under review). The delegate was not satisfied that the Applicant passed the character test, nor that there was another reason why the cancellation decision should be revoked.[3]

    [3] Notification of decision not to revoke visa cancellation decision, 11 November 2024, Exhibit R1, p 19-35.

  5. On 15 November 2024, the Applicant applied to the Tribunal for review of the decision not to revoke the cancellation decision (application for review).

  6. For the purposes of s 500(6L)(c) of the Migration Act, the 84th day is 5 February 2025.  

    TRIBUNAL DIRECTIONS AND LISTING NOTICES

  7. On 22 November 2024, the Tribunal held a telephone directions hearing. The Applicant attended from Villawood Immigration Detention Centre. Counsel for the Respondent requested that the hearing be listed earlier that the dates proposed in draft directions, already circulated to the parties for consideration. The Tribunal listed the application for hearing on 14 January 2025 and 15 January 2025, to be conducted by MS TEAMS.

  8. On 22 November 2024, the Tribunal emailed listing notices to the parties, including to the Applicant’s personal email address, confirming that the application had been listed for hearing on 14 January 2025 and 15 January 2025. The Tribunal emailed the parties the Tribunal directions made on 22 November 2024 which included the following direction:

    11. The matter is listed for a two (2) days TEAMS hearing commencing on 14 January 2025 at 10:00am (Sydney time) and proceeding on 15 January 2025…

  9. Due to administrative error, on 6 December 2024 the Tribunal emailed the parties, including the Applicant’s personal email address, stating that ‘The hearing by video dated 14, 15 January 2025 has been vacated and rescheduled on 20, 21 January 2025’. An attached listing notice stated that the application had been relisted for hearing on 20 January 2025 and 21 January 2025.

  10. On 10 December 2024, the Tribunal Registry emailed the parties, including the Applicant’s personal email address, stating that ‘The dates of the hearing have reverted to 14, 15 January 2025’. The attached listing notice stated that the application had been listed on 14 and 15 January 2025. 

    HEARING OF THE PROCEEDING

    14 January 2025

  11. The Tribunal opened the MS TEAMS link for the hearing of the proceeding at 10am (NSW) on 14 January 2025. The hearing room in Villawood Immigration Detention Centre was connected and visible but the Applicant was not in the hearing room.

  12. After waiting for approximately 20 minutes, Tribunal staff contacted Villawood Immigration Detention Centre by phone twice seeking information about the Applicant’s location.

  13. At approximately 10.45am (NSW), I adjourned the hearing until 1pm (NSW).

  14. Tribunal staff informed an officer at Villawood Immigration Detention Centre, by phone, that the hearing was adjourned until 1pm. Tribunal staff emailed a letter to Villawood Immigration Detention Centre, addressed to the Applicant, confirming that the hearing had been adjourned until 1pm.

  15. The hearing of the proceeding resumed at 1pm (NSW) and the Applicant appeared on MS TEAMS from the hearing room in Villawood Immigration Detention Centre.

  16. The Applicant asked what the hearing was about, and said that he thought the final hearing was in November 2025. The Applicant subsequently held up his phone and said, ‘My bad, I should have known’ and indicated that he had received notification of the hearing date being 14 and 15 January 2025.

  17. Counsel for the Respondent commenced cross-examination of the Applicant on the afternoon of 14 January 2025. The Applicant said that he was arranging a lawyer through his parents, but because he did not know the hearing was on this date, he did not have a lawyer. I offered the Applicant the option of an adjournment to follow-up on seeking legal representation. The Applicant declined the offer of an adjournment and said he wanted to proceed.

  18. Cross-examination progressed for approximately an hour. After a short break, I offered the Applicant the option of adjourning until 10am (NSW) on 15 January 2025. The Applicant said he would like to adjourn and resume on 15 January 2025. Counsel for the Respondent agreed to the adjournment and indicated that cross-examination may need to continue on 16 January 2025 due to the limited progression on 14 January 2025.

    15 January 2025

  19. On 15 January 2025, the hearing of the proceeding resumed at 10am (NSW) and the Applicant appeared on MS TEAMS from the hearing room in Villawood Immigration Detention Centre at approximately 10.12am (NSW). Following a short break mid-morning, I adjourned the hearing at 12.20pm (NSW). I informed the parties that they should return at 1.30pm (NSW).

  20. The Applicant failed to appear when the hearing re-commenced at 1.30pm (NSW).

  21. Tribunal staff contacted the Applicant directly on his mobile phone. I was informed that the Applicant said that he would not attend the hearing via MS TEAMS and asked if he could attend by phone. I requested that the Applicant return to the hearing room to explain why he sought to appear by phone. I was informed by Tribunal staff that the Applicant declined.

  22. Tribunal staff called the Applicant’s personal mobile phone number on six occasions, with the Applicant answering on one occasion and the call being immediately terminated. The five other calls went to the Applicant’s voicemail.

  23. At approximately 1.55pm (NSW) Tribunal staff spoke to an officer at Villawood Immigration Detention Centre, who informed the Tribunal that the Applicant was on his way to the hearing room.

  24. At approximately 2.30pm (NSW), an officer at Villawood Immigration Detention Centre informed the Tribunal and counsel for the Respondent, through the MS TEAMS link, that the Applicant refused to return to the hearing, either by MS TEAMS or by phone. 

    Respondent’s submissions on procedural steps

  25. I invited counsel for the Respondent to make submissions as to the procedural steps the Tribunal should take given the Applicant’s failure to appear at the resumed hearing of the proceeding.

  26. Mr Plitsch submitted that the following three options were available to the Tribunal.

    (a)The Tribunal could dismiss the application for non-appearance under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).

    (b)The Tribunal could make a decision under s 105 of the ART Act without hearing further from the Applicant. Counsel submitted this approach may not be appropriate given the potential consequences for the Applicant, and the importance of the Applicant having the opportunity to respond to questions that the Minister would put to him.

    (c)The Tribunal could adjourn the hearing. Counsel submitted that this may not be an appropriate course given the 84th day is approaching.

  27. Referring to Somba v Minister for Home Affairs [2019] FCAFC 150 (Somba), Mr Plitsch submitted that a dismissal under s 99 of the ART Act would be a decision for the purposes of s 500(6L) of the Migration Act. That decision would result in the 84-day period ceasing to run as s 500(6L)(c) would no longer be engaged.

  28. I raised that if the Tribunal failed to make any decision before 5 February 2025, then by the operation of s 500(6L)(c) of the Migration Act, the Tribunal is taken to have made a decision under s 105 of the ART Act to affirm the decision under review.

  29. Mr Plitsch submitted that it may be a fairer outcome for the Applicant if the Tribunal dismissed the application, because the Applicant would then have the opportunity to seek reinstatement. Mr Plitsch submitted that despite the 84-day period having ceased to run, that time limit period may be a relevant matter for the Tribunal in determining reinstatement of the application.  

    DIRECTIONS MADE ON 15 JANUARY 2025

  30. I decided to provide the Applicant with a further opportunity to participate and to put the Applicant on notice that the Tribunal may dismiss the application.

  31. On 15 January 2025, I made the following directions which were emailed to the parties, including to the Applicant’s personal email address:

    1.    The hearing in this matter that commenced on 14 January 2025 is vacated because of the Applicant’s failure to appear at the resumed hearing at 1.30pm (NSW time) on 15 January 2025.

    2.    The Applicant must notify the Tribunal and the Respondent on or before 21 January 2025 if he seeks to have the hearing rescheduled. If the Applicant fails to notify the Tribunal and the Respondent, the Tribunal may dismiss the application.

    3.    The parties have liberty to apply.

  32. By 28 January 2025, the Tribunal had not received notification from the Applicant.

    RELEVANT LEGISLATION

  33. Section 500(6L) of the Migration Act states.

    If:

    (a) an application is made to the ART 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 ART has not made a decision under the provisions of the ART Act mentioned in subsection (6M) 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 ART is taken, at the end of that period, to have made a decision under section 105 of the ART Act to affirm the decision under review.

  34. Section 600(6M) includes, for the purposes of s 600(6L)(c), a decision to dismiss an application under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).

    (e) section 99 (Tribunal may dismiss application if applicant does not appear)

  35. Section 99 of the ART Act states:

    If:

    (a) the applicant fails to appear at a Tribunal case event that relates to a proceeding in relation to an application; and

    (b) the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event;

    the Tribunal may dismiss the application. 

    Note 1: Tribunal case events include hearings, direction hearings and dispute resolution processes (see the definition of Tribunal case event in section 4)

    Note 2: For how to appear at a Tribunal case event, see section 73.

    SOMBA V MINISTER FOR HOME AFFAIRS [2019] FCAFC 150 (SOMBA)

  36. Somba concerned an appeal from a Federal Court decision to dismiss an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT).

  37. The AAT had decided not to reinstate an application for review of a visa cancellation decision, following dismissal under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) due to the applicant’s failure to appear, taking the view that if it reinstated the application for review, by force of s 500(6L) the [AAT] would automatically be taken to have affirmed the decision under review.[4]

    [4] Somba v Minister for Home Affairs [2019] FCAFC 150 [7].

  38. The issue for the Full Court was whether, for the purposes of s 500(6L) of the Migration Act, reinstatement of the application by the AAT meant that the AAT had not made a decision under s 42A of the AAT Act in relation to the decision under review.[5]

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

  39. In allowing the appeal, the Full Court held that;

    … whatever the status, after reinstatement of an application, of the original decision to dismiss, for the purposes of s 500(6L) that decision is one which has in fact been made so s 500(6L)(c) is no longer engaged. We see no cause to read in to s 500(6L) a requirement that the decision be one that has continuing legal effect.[6]

    [6] Somba v Minister for Home Affairs [2019] FCAFC 150 [38].

  40. Section 500(6L) of the Migration Act, as it was in force at the relevant time, then stated.

    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.

  41. Section 42A(2) of the AAT Act, the provision under which the AAT had dismissed the application, relevantly stated:

    (2) if a party to a proceeding before the Tribunal in respect of an application for the review of a 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;

    …

    CONSIDERATION

  42. I am satisfied that the Applicant failed to appear at a ‘Tribunal case event’ that related to a proceeding in relation to an application for the purposes of s 99(a) of the ART Act. Relevantly, s 4 of the ART Act defines ‘Tribunal case event’, in relation to a proceeding before the Tribunal, to mean, amongst other things: ‘the hearing, or part of the hearing, of the proceeding’.

  43. I am satisfied that the Applicant received appropriate notice of the date, time and place of the Tribunal case event for the purposes of s 99(b) of the ART Act.

  44. By 28 January 2025, I am satisfied that the Tribunal had not received any form of notification from the Applicant.

  45. Despite amendments to the Migration Act and the enactment of the ART Act, I consider that the Full Court’s reasoning in Somba remains applicable to s 500(6L) of the Migration Act presently in force and the relevant provisions of the ART Act.

  46. Section 500(6M) of the Migration Act expressly prescribes provisions of the ART Act for the purposes of s 500(6L)(c). Section 500(6M) includes ‘section 99 (Tribunal may dismiss application if applicant does not appear’.[7]

    [7] Migration Act 1958 (Cth) s 500(6M)(e).

  47. I accept that dismissal of the application for review under s 99 of the ART Act is a decision for the purposes of s 500(6L) of the Migration Act, with the result that s 500(6L)(c) is no longer engaged and the 84-day period ceases to run.

  48. The Applicant may apply to the Tribunal for reinstatement of the application within 28 days after receiving notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows): s 102(7) of the ART Act.

  49. If the Tribunal considers it appropriate, the Tribunal may reinstate the application and make such order as appear to the Tribunal to be appropriate in the circumstances: s 102(9) of the ART Act. The Full Court in Somba observed that the policy evident from the 84-day time limit under s 500(6L) of the Migration Act is a matter that is appropriate for the Tribunal to take into account in determining whether to reinstate an application, and what directions to make in the circumstances.[8]

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

    DECISION

  50. I dismiss the application for review under s 99 of the ART Act because:

    (a)the Applicant failed to appear at part of the hearing of the application on 15 January 2025 which was a ‘Tribunal case event’, and

    (b)I am satisfied that the Applicant received appropriate notice of the date, time and place of the hearing, including:

    (i)an email to the Applicant on 10 December 2024 stating that ‘The dates of the hearing have reverted to 14, 15 January 2025’, with an attached listing notice stated that the application had been listed on 14 and 15 January 2025

    (ii)oral notice on 15 January 2025 that the hearing would resume after lunch at 1.30pm (NSW) on 15 January 2025.

  51. The Applicant may apply to the Tribunal for reinstatement of the application within 28 days after receiving notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows): s 102(7) of the ART Act.

  52. If the Tribunal considers it appropriate, the Tribunal may reinstate the application and make such order as appears to the Tribunal to be appropriate in the circumstances: s 102(9) of the ART Act.

    I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for the decision herein of Senior Member C Shepherd.

    ……………………[sgnd]……………………

    Associate

    Dated: 29 January 2025

    Date(s) of hearing: 14 and 15 January 2025

Applicant’s Representative

Self-Represented

Respondent’s Representative

Max Plitsch

Australian Government Solicitor


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Somba v Minister for Home Affairs [2019] FCAFC 150