Otchere and Minister for Immigration and Citizenship (Practice and procedure) - [2025] ARTA 1908

Otchere and Minister for Immigration and Citizenship (Practice and procedure) [2025] ARTA 1908 (19 September 2025)
Applicant:Yaw Opukj (Peter) Otchere
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4215

Tribunal:            Senior Member G McCarthy
Place:Canberra
Date of order:  19 September 2025
Date of reasons for decision:         24 September 2025

Decision:The applicant’s application dated 2 July 2025 is dismissed.

………[SGD]………….
Senior Member G. McCarthy
Catchwords
MIGRATION – application under section 501CA(4) of Migration Act 1958 for review of decision not to revoke mandatory cancellation of applicant’s five year resident return visa – applicant failed to appear at hearing – matter stood down to enable enquiries as to why the applicant had not appeared – communication from the applicant that he would not be attending the hearing – matter further stood down to give applicant an opportunity to reconsider – applicant put on notice Minister would likely apply for the matter to be dismissed if he did not attend – applicant confirmed he would not be attending the hearing – application dismissed for failure to appear
Legislation
Administrative Review Tribunal Act 2024 ss 98, 99, 102
Migration Act 1958 ss 500, 501, 501CA
Delegated Legislation
Administrative Review Tribunal Rules 2024 r 24
Cases
Allesch v Maunz [2000] HCA 40
Koko and Minister for Immigration, Citizenship and Multicultural Affairs [2025] ARTA 123
Somba v Minister for Home Affairs [2019] FCAFC 150
Statement of Reasons

On 19 November 2024, a delegate of the Minister made a decision to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return visa (the visa), as required under s 501(3A) of the Migration Act 1958 (the Act), because the delegate was satisfied the circumstances set out in s 501(3A)(a)(i) and (b) existed (the mandatory cancellation decision).[1]
[1] G documents, page 141
On 22 November 2024, pursuant to an invitation to do so, the applicant made representations as to why the mandatory cancellation decision should be revoked.[2]
[2] G documents, page 58
On 1 July 2025, a delegate of the Minister determined the power to revoke the mandatory cancellation decision under s 501CA(4) of the Act could not be exercised because the delegate was not satisfied the applicant passed the character test and was not satisfied there was another reason for why the mandatory cancellation decision should be revoked.[3] On 2 July 2025, the decision was delivered to the applicant by hand.[4]
[3] G documents, page 17
[4] G documents, page 14
On 2 July 2025, the applicant applied to the Tribunal for review of the decision not to revoke the mandatory cancellation of his visa.[5]
[5] G documents, page 1
The applicant’s application was listed for hearing on 8 and 9 September 2025, then relisted for 11 and 12 September 2025 in response to the applicant’s request for more time to prepare and then, by direction made on 5 September 2025, relisted for hearing on 19 and 22 September 2025 to be confirmed by the Tribunal’s Registry. On 8 September 2025, the Tribunal confirmed the relisting by sending the applicant and the Minister a notice of listing informing them that the matter was listed for hearing on 19 and 22 September 2025 commencing at 10am, AEST, to be conducted by video.
The Tribunal commenced the hearing at 10.01am on 19 September 2025, but the applicant did not join the hearing by video link from Villawood Correction Centre (Villawood) where he was (and continues to be) detained.
The Tribunal stood the matter down to 10:30am so enquiries could be made as to why the applicant had not appeared. Enquiries were made by a solicitor for the Minister and by a registry officer at the Tribunal. In response to both enquiries, an officer at Villawood stated the applicant had advised he did not want to attend the hearing. Counsel for the Minister advised the Tribunal that no explanation had been given for why the applicant did not wish to attend. At the suggestion of counsel for the Minister, I stood the matter down until 2pm (that day) to give the applicant an opportunity to attend the hearing should he change his mind.
At 12:04pm, the Tribunal sent an email to the applicant noting it had been advised the applicant did not want to attend the hearing but had not given any explanation as to why and advised him that, at the request of the respondent, the matter was adjourned to 2pm (that day) to give him an opportunity to attend the hearing should he change his mind.[6]
[6] Exhibit R1
At 12:21pm, the applicant sent a reply to the Tribunal by email expressing his “deepest concern and disappointment in relation to the conduct and progression of this matter”. He stated “I am completely and utterly shocked that I could be expected to receive an impartial and fair hearing when significant facts and statements, which directly affect the credibility of the allegations against me, have now been withheld or obscured.” He stated “I have never sought to avoid this process, nor to show disrespect to the Tribunal. On the contrary, I value this opportunity to have my case properly considered. But when the foundation of the case is tainted by misinformation and allegations made in bad faith, I cannot sit quietly and allow such distortions to determine the future of my life and family.”[7]
[7] Exhibit R1
The applicant did not identify the “facts and statements” that, he said, had been “withheld or obscured” or the “misinformation and allegations made in bad faith” to which he was referring in his email.
The applicant concluded by stating “I respectfully ask the Tribunal to take note of the seriousness of this issue and to ensure that my right to a fair hearing is not eroded by the withholding of facts or the perpetuation of allegations made under duress or out of spite.”
At 1:02pm, the applicant sent another email to the Tribunal with a heading “Affidavit of Yaw Peter Otchere” in which he stated he was “gravely concerned that certain allegations and statements that have been advanced in these proceedings are fabricated, made under duress, or advanced with malice.”[8]
[8] Exhibit R2
The applicant contended reliance on these “fabricated or improperly obtained” statements would breach principles of fairness which, he said, were set out in the High Court’s decision in Kioa v West (1985) 159 CLR 550. The applicant did not identify the allegations or statements that were of concern to him. At paragraphs 17 and 18 of the so-called affidavit, the applicant wrote:
17. My non-attendance at the commencement of the hearing on 19 September 2025 was not an act of disrespect. It was the product of shock and despair that fabricated allegations had been permitted to infiltrate the process.
18. I now state unequivocally that I wish to attend and fully participate in this review.[9]
[9] Exhibit R2
At 2pm, I resumed the hearing by video but again the applicant did not join the video link. Having regard to paragraph 18 of his so-called affidavit, I elected again to adjourn to ascertain why the applicant had not attended to participate in the review.
I caused an email to be sent to the applicant at 2:23pm which noted his non-attendance at the resumed hearing at 2pm, notwithstanding paragraph 18 of his affidavit. The email noted that attempts to contact him ‘went to voicemail’ and that the Tribunal “has again adjourned to enable you to participate, this time until 2.30pm, in case there is some misunderstanding of your intentions.”[10]
[10] Exhibit R3
At 2:31pm, the applicant sent an email to the Tribunal in reply, again headed “Affidavit of Yaw Peter Otchere”, again alleging statements in these proceedings are “fabricated, made under duress, or advanced with malice”;[11] recording his concern “that there have been deliberate attempts to suppress or silence individuals who have sought to provide supporting statements regarding my rehabilitation, my role in detention, and my family circumstances”;[12] and “that the prosecution must be called to account for these irregularities, and that the Tribunal cannot safely proceed without testing the integrity of the evidence relied upon”.[13]
[11] Exhibit R3 at [4]
[12] Exhibit R3 at [7]
[13] Exhibit R3 at [10]
The applicant stated “the prospect of [my] removal [to England] would place me at a real risk of self-harm, including suicidal ideation and acts of self-injury up to and including the ending of my life”;[14] “the Tribunal should treat this risk as a critical impediment under Paragraph 9.2 of Direction 110”;[15] “I respectfully request that, if the Tribunal has any concern about the credibility or weight of my account of risk, it obtain independent psychiatric and psychological assessment and any other relevant medical evidence prior to making any adverse determination”;[16] and “I now state unequivocally that I wish Not to attend and fully participate in this review until more information and evidence can be gathered or statements of fact regarding conditions of current relationship and conditions of rehabilitation can be provided and properly addressed.”[17]
[14] Exhibit R3 at [19]
[15] Exhibit R3 at [20]
[16] Exhibit R3 at [21]
[17] Exhibit R3 at [26]
The applicant concluded by requesting the Tribunal to “exclude fabricated or suppressed material from consideration”; “apply Direction 110 faithfully”; “require the prosecution to account for irregularities in evidence gathering and disclosure”; “give decisive weight to the real and imminent risk to my mental health and safety that would arise from my removal to England”; and “obtain independent medical evidence if the Tribunal considers it necessary to assess that risk.”[18]
[18] Exhibit R3 at [27]
At approximately 2:30pm, an officer of the Tribunal rang Villawood to enquire of the applicant’s intentions and was told the applicant would not attend the resumed hearing.
When I resumed the hearing at 2:35pm, again the applicant did not join the hearing by video-link.
On resumption of the hearing, counsel for the Minister stated his instructing solicitor had spoken with an officer at Villawood at 2:25pm to enquire about the applicant’s intentions. The officer stated she had spoken with the applicant at 1:50pm. She stated he was invited to attend Villawood’s video link booth at 2pm to participate in the hearing but he replied as follows:
You can keep coming and asking but I’m not going down.
Submissions of the Minister
The Minister applied for the applicant’s application to be dismissed pursuant to s 99 of the Administrative Review Tribunal Act 2024 (the ART Act), which states:
99 Tribunal may dismiss application if applicant does not appear
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.
A “Tribunal case event” is defined in s 4 of the ART Act to mean, among other things, “the hearing .. of the proceeding”.
In relation to s 99(b), the Minister relied on the Tribunal’s notice of listing which notified the applicant that the matter was listed for hearing on 19 September 2025 commencing at 10.00am (AEST) to be conducted by video link.
The Minister noted there was no uncertainty about the applicant receiving the notice: rather, he was choosing not to attend the hearing.
The Minister submitted that to the extent the applicant in paragraphs 20 and 21 of his email sent at 2:31pm[19] might, impliedly, have been seeking an adjournment premised on the need for the Tribunal to obtain independent psychiatric and psychological assessment of him regarding risk of harm before determining his application, the adjournment was opposed. The Minister submitted it was impractical for the Tribunal to adjourn and complete the review by 25 September 2025, as it would need to do if the review was to be done on the merits, noting that pursuant to s 500(6L) of the Act, if the Tribunal had not made a decision by that day (being 84 days after the applicant was notified of the decision under review) it would be “taken .. to have made a decision … to affirm” the decision under review.
[19] See paragraph 17 above, footnotes 15 and 16
The Minister noted the applicant had been given multiple opportunities through the day to attend the hearing but, on each occasion, had declined to do so. The Minister submitted, in the circumstances, the application should be dismissed.
Consideration
The power to dismiss under s 99 of the ART Act is a discretionary power. Whilst the preconditions in s 99(a) and (b) must be met in order for the power to be exercised, whether to exercise the power requires consideration of all relevant facts and circumstances.
In this case, having reviewed the notice of listing and noting the applicant’s failure to appear at the commencement of the hearing, I was satisfied the preconditions for exercise of the power were met. The question was whether the power should be exercised.
I first note that failure to appear, absent a legitimate reason for the failure (for example ill-health or inability), is not just a discourtesy or a procedural irregularity. It is a significant act that, in most cases, materially if not completely frustrates the Tribunal’s ability to proceed. In the great majority of cases, a hearing is the Tribunal’s central mechanism for giving an applicant the opportunity to be heard in a procedurally fair manner. If an applicant, on notice of the time date and place of the hearing, fails to take that opportunity by failing to appear, the Tribunal is invariably unable to proceed in a procedurally fair way.
In my view, the significance of an applicant failing to appear underpins why the power to dismiss for that reason is provided.
Turning to this case, the applicant cannot, on one hand, claim he wants his case to be heard and then, on the other, not take the opportunity to be heard when it is given. Procedural fairness involves a right to an opportunity to be heard, not a right to be heard. As the High Court pointed out in Allesch v Maunz:[20]
[I]t is worth emphasising that the principle [to afford a hearing] just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require (footnotes omitted).[21]
[20] [2000] HCA 40
[21] [21] [2000] HCA 40 at [38]
In this case, significant practical impediments arose from the applicant’s failure, and indeed his refusal, to appear.
The applicant contended allegations and statements against him had been fabricated, made under duress or advanced with malice but gave no indication as to what those allegations or statements were or why he claimed they had that character. Without his attendance at the hearing, the Tribunal was unable to ask him what allegations or statements had that character or to seek the Minister’s response or to decide what statements should be admitted or excluded as evidence in the case.
Also, if the applicant had concerns about the intended evidence he could and should have said so earlier than on the morning of the hearing. At hearing, the Minister confirmed the documents on which he intended to rely, had the hearing proceeded, were the documents relied on by the delegate for making the decision under review, and the documents produced under summons from the Waverley Local Court, NSW Police, Stewart House, Manly Local Court and NSW Corrective Services. These documents were all provided to the applicant in advance of the hearing.
I accept many of the documents are adverse to the applicant, particularly those evidencing the basis for his criminal convictions for driving offences, destroying or damaging property, assault and multiple contraventions of apprehended domestic violence orders that were made against him in an endeavour to keep his former partner safe, but that does not suggest the documents were fabricated or made under duress.
In any event, if the applicant wanted to object to the Tribunal receiving into evidence any documents in the material on which the Minister intended to rely, he could and should have identified the documents to which he objected and why. Implicit in his emails is that he had read the documents on which the Minister intended to rely and had formed a view that some of them were fabricated, made under duress or in spite, and so should be excluded, but by failing to appear at the hearing and identifying the documents of concern, the Tribunal had no ability to know to which documents he objected or why he contended they were fabricated, made under duress or provided in spite.
I note that at directions hearing held on 18 July 2025, the applicant was ordered to file and serve by 22 August 2025 any written statements including any witness statement on which he intended to rely and any other evidence on which he proposed to rely at hearing. The applicant filed four character references, but no statement of any witness he intended to call or any other evidence on which he intended to rely by the required date or at all. In particular, he did not file any evidence to support a submission that any of the documents on which the Minister intended to rely should not form part of the evidence because they were fabricated, made under duress for any other reason.
The applicant’s claim in his email sent during the afternoon of the first day of the hearing at 2:31pm about risk of self-harm, were he to be removed to England, was of obvious concern, but it was not apparent what I was to do with this claim. Pursuant to s 500(6J) of the Act, I “must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the .. hearing”. Plainly, that had not occurred in the case of the email sent on the day of the hearing. The applicant did not refer to any prior indication of risk of self-harm in the documents previously provided to the Tribunal to support the claim although I acknowledge that in his statutory declaration made on 17 December 2024 the applicant wrote about the emotional pain he would experience if removed to the United Kingdom and separated from his former partner and their child.[22]
[22] G documents page 90 at page 94
Also, as the Minister pointed out, by reason of the ’84 days’ time constraints in s 500(6L) of the Act, it was not practicable to adjourn the hearing to enable the claimed risk of self-harm to be considered.
Also, my role was only to hear the applicant’s application which the applicant frustrated by not attending the hearing. Risk of self-harm is a question that can still be addressed by the Minister in the context of whether to remove the applicant to England.
Another concern, as the Minister pointed out, was the statutory need to decide the application prior to 25 September 2025 if the hearing was to have any purpose. The decision under review was made on 2 July 2025. The decision was delivered to the applicant by hand that day.[23] The 84^th day after 2 July 2025 is 25 September 2025. Pursuant to s 500(6L)(c) of the Act, if the Tribunal did not make a decision by 25 September 2025 (being 84 days after the day on which the applicant was notified of the decision under review) the Tribunal would be “taken .. to have affirmed the decision”.
[23] G documents, page 14
Postponement of the hearing from 11 and 12 September to 19 and 22 September 2025 meant there was no practicable option for the hearing to occur other than on 19 and 22 September, if the hearing was to have any purpose, yet on 19 September 2025 the applicant steadfastly refused to appear.

Another concern was that at the time listed for the hearing to begin, the applicant had not paid the filing fee of $100 (in his case), despite the following statement from the Tribunal in his application form:
When a fee must be paid, we will not start the review until you pay the fee. The Tribunal may dismiss your application if you do not pay the fee within six weeks after lodging your application.[24]
[24] G documents, page 13
That statement reflects rule 24(1) of the Administrative Review Tribunal Rules 2024 (the Rules) which provides:
If an application is not accompanied by the prescribed fee, the Tribunal is not required to deal with the application unless, and until, the fee is paid.
On 21 July, 4 August and 12 September 2025, the Tribunal gave the applicant reminders by email and telephone about the need to pay the fee and twice received assurances from the applicant that he would pay the fee “shortly” or the following day, but he never did.
Section 98 of the ART Act states that the Tribunal “may dismiss an application if a fee payable by the applicant to the Tribunal in respect of the application is not paid by the time prescribed by the rules.” Under rule 24(2), the time prescribed by the Rules “by which the fee must be paid is the end of the 6 weeks starting on the day the application is made.” In this case, the 6 weeks expired on 13 August 2025.
I recognise that to dismiss for failing to pay a comparatively small filing fee should be avoided if possible. I intended to bring non-payment of the fee to the attention of the applicant and to do what I could to accommodate the applicant’s payment of the fee in order for the hearing to proceed, but the opportunity to do so never arose because the applicant failed to attend the hearing. This is another illustration of why the applicant’s failure to attend the hearing frustrated the process.
Dismissal was not lightly taken. As evidenced by the events described on 19 September 2025, three times I stood the matter down to give the applicant an opportunity to attend and present his case but he steadfastly refused to do so. Given the urgency with which the matter needed to be heard and decided if the hearing was to have any purpose; the applicant’s wilful failure to appear for reasons expressed with such generality as to be opaque; and the evidence on which the Minister intended to rely which showed a plainly arguable case for why the decision under review should be affirmed, I saw no purpose in conducting the hearing in the applicant’s absence. Instead, I concluded my discretion to dismiss for failure to appear was properly exerciseable and should be exercised. Accordingly, I dismissed the applicant’s application for review.
I conclude by noting that pursuant to s 102(7) of the ART Act, the applicant may apply to the Tribunal for reinstatement of his application within 28 days after receiving notice that his application has been dismissed (or such longer period as the Tribunal, in special circumstances, allows).
In relation to such an application, I note the observations of the Tribunal in Koko and Minister for Immigration, Citizenship and Multicultural Affairs:
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.[25] [26]
[25] [2025] ARTA 123 at [49]
[26] The Tribunal's reference to Somba is a reference to a decision of a Full Court of the Federal Court in Somba v Minister for Home Affairs [2019] FCAFC 150 at [41]
.....................[SGD].......................
Tribunal Officer
Date: 24 September 2025

Date of hearing 19 September 2025

Solicitor for Applicant:
NA

Counsel for Respondent: Mr A Keevers

Solicitor for Respondent: Sparke Helmore

Date of hearing	19 September 2025
Solicitor for Applicant:	NA
Counsel for Respondent:	Mr A Keevers
Solicitor for Respondent:	Sparke Helmore