Nguyen (Migration)

[2024] ARTA 824

Nguyen (Migration) [2024] ARTA 824 (1 November 2024)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Duc Khanh Nguyen

Respondent:  Minister for Home Affairs

Tribunal Number:  2101963

Tribunal:General Member Katie Malyon

Place:Sydney

Date:  1 November 2024

Decision:The Tribunal confirms the decision to dismiss the application.

I, General Member Kate Malyon, certify that this is

the Tribunal’s statement of decision and reasons.

Statement made on 1 November 2024 at 2:41pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – no appearance at hearing with no reason provided – application for review dismissed – new legislation provides 28 days to apply for reinstatement – no application for reinstatement – dismissal confirmed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 362B(1A)(b), 362C(5), 368C

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 February 2021 to refuse to grant the visa applicant, Mr Duc Khanh Nguyen, a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2. On 2 October 2024, the Administrative Appeals Tribunal dismissed the application under

   
   

   s 362B(1A)(b) of the Act as Mr Nguyen did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing. No reason for Mr Nguyen’s non-appearance was provided.

3. Mr Nguyen was notified of the dismissal decision and was given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with

   
   

   s 362C(5) of the Act. Mr Nguyen was 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.

4. Subsequently, on 21 October 2024 the Tribunal wrote to Mr Nguyen re-notifying him of its decision to dismiss the review application and advising him of an additional 14 days to 30 October 2024 to apply for reinstatement of the application for review.  As set out in the Tribunal’s letter of 21 October 2024, following passage of the Administrative Review Tribunal Act 2024, the Administrative Appeals Tribunal has been replaced by the Administrative Review Tribunal. Further, s 362B and s 368 of the Act have been repealed. Relevantly, the new s 368C of the Act provides 28 days from the date of the original decision to dismiss the application to seek reinstatement of the review application, rather than just 14 days.

5. In the circumstances, Mr Nguyen was notified that he may apply for reinstatement of the application for review by 30 October 2024.  The reinstatement application should set out why he failed to appear at the hearing scheduled for 2 October 2024 and provide any other information he wants the Tribunal to take into consideration when deciding whether his reinstatement application should be granted.

6. Mr Nguyen has not applied for reinstatement of the review application within the 28-day period.  As he has not applied for reinstatement of the application within the 28-day period, the Tribunal must confirm the decision to dismiss the application.  In these circumstances, the decision under review is taken to be affirmed.

   DECISION

7. The Tribunal confirms the decision to dismiss the application.

   Katie Malyon

   
   Member

   Date(s) of hearing:  2 October 2024 (no attendance)

   Representative for the Applicant:           Mr Lewis Van Mai (MARN: 2016875)