Singh (Migration)

[2020] AATA 5798

Singh (Migration) [2020] AATA 5798 (23 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Balwinder Singh
Mrs Mandeep Kaur
Master Gurnoor Singh

CASE NUMBER:  1935530

DIBP REFERENCE(S):  BCC2019/2526795

MEMBER:L. Hawas

DATE:  23 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal confirms the decision to dismiss the application of the first named applicant.

The Tribunal has no jurisdiction with respect to the second and third named applicants.

Statement made on 23 October 2020 at 1:44pm

CATCHWORDS

MIGRATION – applicant failed to attend tribunal hearing –dismissal decision was sent in accordance with s 362C(5)– decision under review dismissed– no jurisdiction with respect to the second and third named applicants

LEGISLATION
Migration Act 1958, ss 140, 348,362

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 6 October 2020 the Tribunal dismissed the application under s.362B(1A)(b) of the Migration Act 1958 (Act) as the review applicant (the first named applicant) did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

2. The review applicant was notified of the dismissal decision and 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. The review applicant 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.

3. In these circumstances, the decision under review is taken to be affirmed.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision before the Tribunal is the decision cancelling the review applicant’s visa. The visas of the second and third named applicants were automatically cancelled as a consequence of the review applicant’s visa cancellation. Accordingly, the visas of the second and third named applicants were not cancelled by decision but by force of the operation of s.140(1) of the Act. The cancellation of those visas was self-executing on the cancellation of the visa of the review applicant: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellations of the second and third named applicants under s.140(1), the Tribunal has no jurisdiction with respect to them.

   DECISION

5. The Tribunal confirms the decision to dismiss the application of the first named applicant.

6. The Tribunal has no jurisdiction with respect to the second and third named applicants.

   L. Hawas
   Senior Member