Somba and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Mr Somba for the re-instatement of his application to review a visa cancellation decision. The Administrative Appeals Tribunal had dismissed Mr Somba's application for review due to his failure to appear at the hearing. Mr Somba subsequently sought to have this dismissal set aside and his application re-instated. The decision was made by Deputy J W Constance P.

The primary legal issue before the Tribunal was whether it had the power to re-instate Mr Somba's application for review, given that the application for re-instatement was made after the expiry of a statutory 84-day period prescribed by subsection 500(6L) of the Migration Act 1958 (Cth). This subsection provides that if the Tribunal has not made a decision in relation to a review application within 84 days of the applicant being notified of the decision under review, the Tribunal is taken to have affirmed the decision under review.

The Tribunal reasoned that even if Mr Somba's failure to attend the hearing was due to circumstances beyond his control, an order for re-instatement would be futile. This was because Mr Somba was notified of the reviewable decision on 25 October 2017, making the 84-day period expire on 17 January 2018. His application for re-instatement was filed on 6 February 2018, which was 20 days after the statutory deadline. The Tribunal held that, in accordance with the strict timeframes contemplated by the Migration Act for onshore visa cancellation reviews, subsection 500(6L) would have applied regardless of re-instatement. The Tribunal also considered that the reference in subsection 500(6L) to the Tribunal not having made a decision under section 42A of the Administrative Appeals Tribunal Act 1975 (Cth) referred to a decision that remained in force.

Consequently, Mr Somba's application to re-instate his application to review the delegate's decision of 24 October 2017 was dismissed.