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

[2023] AATA 2280

Ott and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2280 (25 July 2023)

Division:GENERAL DIVISION

File Number:          2023/3810

Re:David Edward Lee Ott

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Lee Benjamin

Date:25 July 2023

Place:Brisbane

The application is dismissed pursuant to subsection 42A(5)(b) of the Administrative Appeals TribunalAct 1975 (Cth).

...............................[SGD].........................................

Member Lee Benjamin

Catchwords

PRACTICES AND PROCEDURES – Applicant’s failure to comply with directions in relation to application for review of a decision under section 501CA of the Migration Act 1958

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

REASONS FOR DECISION

Member Lee Benjamin

25 July 2023

1. On 5 August 2022, the Respondent’s delegate cancelled the Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa (Visa) under subsection 501(3A) of the Migration Act 1958 (Cth) (Migration Act).

2. On 20 August 2022, the Applicant made representations to the Respondent seeking revocation of the cancellation decision in accordance with an invitation to do under subsection 501CA(3)(b) of the Migration Act.

3. On 26 May 2023, the Respondent’s delegate decided, under subsection 501CA(4) of the Migration Act, not to revoke the cancellation decision. The Respondent’s delegate was not satisfied that the Applicant passed the character test (as defined by section 501 of the Migration Act). Nor was the Respondent’s delegate satisfied that there was another reason why the cancellation decision should be revoked. Accordingly, the power in subsection 501CA(4) of the Migration Act was not enlivened and the Applicant’s Visa remained cancelled.

4. On 29 May 2023, the Applicant filed an application with the Administrative Appeals Tribunal (Tribunal) for review of the Respondent’s delegate’s decision not to revoke the cancellation decision (Review Application).

5. On 9 June 2023, the Tribunal issued directions under which, inter alia, (1) the Applicant was, by 30 June 2023, to file and serve: (a) any witness statements and other evidence on which the Applicant intended to rely at the hearing; and (b) his Statement of Facts, Issues and Contentions (SFIC); and (2) the hearing was listed for 31 July - 1 August 2023 (9 June 2023 Tribunal Directions).

6. The Applicant did not comply with the 9 June 2023 Tribunal Directions because he did not file and serve (a) any witness statements and other evidence; and (b) his SFIC, by 30 June 2023. I note that the Applicant did not, on or before 30 June 2023, request an extension of time to comply with the 9 June 2023 Tribunal Directions.

7. On 11 July 2023, the Tribunal wrote to the Applicant about his non-compliance with the 9 June 2023 Tribunal Directions. In the same correspondence, the Tribunal put the Applicant on notice that the Tribunal may, under subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), dismiss an application if an Applicant fails, within a reasonable time, to (a) proceed with their application or (b) comply with the Tribunal's direction.

8. On 12 July 2023, the Tribunal wrote to the Applicant advising him that the Tribunal had listed a directions hearing by telephone for 13 July 2023 for the purpose of considering the Applicant’s non-compliance with the 9 June 2023 Tribunal Directions. In the same correspondence, the Tribunal put the Applicant on notice about subsection 42A(5) of the AAT Act.

9. On 13 July 2023, the Tribunal convened a directions hearing by telephone. At the hearing, the Applicant advised the Tribunal that he would file his materials on 17 July 2023. At the hearing, I put the Applicant on notice about subsection 42A(5) of the AAT Act, and explained its operation.

10. On 13 July 2023, the Tribunal issued directions under which, inter alia, (1) the Applicant was, by 17 July 2023, to file and serve: (a) any witness statements and other evidence on which the Applicant intended to rely at the hearing; and (b) his SFIC; and (2) the hearing was relisted for 7-8 August 2023 (13 July 2023 Tribunal Directions).

11. The Applicant did not comply with the 13 July 2023 Tribunal Directions because he did not file and serve (a) any witness statements and other evidence; and (b) his SFIC, by 17 July 2023. I note that the Applicant did not, on or before 17 July 2023, request an extension of time to comply with the 13 July 2023 Tribunal Directions.

12. On 18 July 2023, the Tribunal wrote to the Applicant about his non-compliance with the 13 July 2023 Tribunal Directions. In the same correspondence, the Tribunal requested the Applicant to notify the Tribunal by close of business on 19 July 2023 as to whether he proposed to file materials in support of his Review Application. In the same correspondence, the Tribunal put the Applicant on notice about subsection 42A(5) of the AAT Act.

13. The Applicant did not notify the Tribunal by close of business on 19 July 2023 as to whether he would file materials in support of his Review Application.

14. Accordingly, I dismiss the Review Application pursuant to subsection 42A(5)(b) of the AAT Act.

15.      

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin

.................[SGD].........................

Associate

Dated: 25 July 2023