Lesianawai and Minister for Home Affairs (Migration)

This matter concerned an application for review of a visa cancellation decision made under section 501(2) of the *Migration Act 1958*. The applicant, Mr Lesianawai, had his visa cancelled on 10 October 2013. He subsequently lodged an application for review with the Administrative Appeals Tribunal (AAT), which was dismissed in 2018 as being out of time. In May 2019, the applicant lodged what appeared to be a second application for review, accompanied by a letter from his lawyer arguing that the original notification of cancellation was defective and that the AAT therefore retained jurisdiction. The Tribunal was required to determine whether it had the power to reinstate the previously dismissed application or entertain the new application, and whether the original notification letter was affected by an error that would prevent time for review from commencing.

The primary legal issue was whether the applicant's original notification of the visa cancellation decision was defective in a manner that would render the nine-day time limit for lodging a review application inoperative. The applicant contended that the notification letter did not clearly specify the date by which the review application had to be made, relying on the principles established in *DFQ17 v Minister for Immigration and Border Protection*. This, it was argued, meant that time had not yet commenced to run, and the Tribunal had erred in dismissing the original application as out of time. A secondary argument was raised post-hearing, suggesting the notification was not effectively "given" to the applicant while he was incarcerated, drawing parallels with the decision in *Tran and Minister for Immigration and Citizenship*.

The Tribunal rejected the applicant's primary argument, finding that the notification letter in this case was not affected by the type of error identified in *DFQ17*. It also rejected the submission that the previously dismissed application could be reinstated under section 42A(9) of the *AAT Act*, as this provision only applies to matters discontinued or dismissed for failure to appear. The Tribunal further noted that the applicant's post-hearing submissions, which raised a new argument based on *Tran*, were not requested and were filed without leave. The respondent argued that the applicant had ample opportunity to raise this issue earlier and that the approach in *Chadwick and Minister for Immigration* regarding notification of persons in prison should be preferred over that in *Tran*. Ultimately, the Tribunal found that the notification letter was not defective in the manner argued by the applicant. The application was dismissed.