Steven Marsh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2025] ARTA 351

Marsh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Practice and Procedure) [2025] ARTA 351 (1 April 2025)
Applicant/s:  Steven Marsh
Respondent:  Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number:                2025/0493

Tribunal:Senior Member S Webb
Place:Perth
Date:1 April 2025
Decision:The application is dismissed under s 98, s 99 and s 100(a) of the Administrative Review Tribunal Act 2024 (ART Act).

Statement made on 01 April 2025 at 4:16pm
Catchwords
PRACTICE AND PROCEDURE – mandatory visa cancellation – criminal convictions – failure to pass character test – substantial criminal record – application for review of decision not to revoke visa cancellation – failure to pay prescribed fee – failure to appear – failure to proceed within a reasonable period – discretion to dismiss – relevant considerations – decision
Legislation
Administrative Review Tribunal Act 2024 (Cth), ss 9, 55, 56, 98, 99, 100, 296
Administrative Review Tribunal Rules 2024 (Cth), ss 22, 24
Migration Act 1958 (Cth), ss 500, 501, 501CA
Statement of Reasons

Steven March is a citizen of New Zealand who has been residing in Australia under a Special Category (Class TY) (subclass 444) visa (Visa). He was convicted of criminal offences and sentenced to a term of imprisonment which resulted in mandatory cancellation of his Visa under s 501(3A) of the Migration Act 1958 (Act).
Mr Marsh made representations seeking revocation of the mandatory cancellation decision under s 501CA of the Act. A delegate of the Minister decided not to revoke the Visa cancellation decision.
On 23 January 2025, Mr Marsh applied for review of this decision by the Tribunal. The review is regulated by legislative procedures set out in s 500(6) to (6L) of the Act. Mr Marsh contends he has no connection, family or friends in New Zealand.
The short background facts are:
(a)Mr Marsh first arrived in Australia with his immediate family on 28 May 1993.[1] He was 3 years old. His father was born in Australia and his mother in New Zealand. He is the youngest of their 4 children, all of whom were born in New Zealand. He grew up on a farm in Western Australia and he worked for many years on farms and in shearing sheds after leaving school.
(b)All of Mr Marsh’s immediate family and many of his extended family members, including grand-parents, aunts, uncles, nephews and nieces, reside in Australia.[2] His father died in 2024.
(c)In 2015, Mr Marsh was injured in a serious tractor accident on a farm in which he broke his back. In 2020, he was paid workers’ compensation. It is probable Mr Marsh suffers from post-traumatic stress disorder and chronic back pain.
(d)Mr Marsh has an extensive record of convictions for criminal and traffic offences.[3]
[1] Exhibit 1, G15, 94.
[2] Ibid, G17, 107.
[3] Ibid, G6.
On 3 February 2025, the Tribunal issued listing notices for a hearing on 25 and 26 March 2025 and made orders requiring the Applicant to lodge materials on which he wanted to rely by 7 March 2025.
On 11 February 2025, the Tribunal sent the Applicant a notice in respect of the prescribed fee payable for his application and the risk of dismissal should the fee not be paid.
Mr Marsh did not pay the prescribed fee for his application.
On 21 February 2025, the Tribunal issued a listing notice, changing the dates of the substantive hearing to 21 and 24 March 2025.
On 26 February 2025, the Tribunal issued listing notices for a directions hearing by video on 5 March 2025.
Mr Marsh appeared at the directions hearing on 5 March 2025. The Tribunal discussed the limits set out in s 500 of the Act and related issues of fairness, as well as the requirement for Mr Marsh to pay the prescribed fee. In order to provide Mr Marsh with as much latitude as possible within the limited 84 day period for the review, the Tribunal:
(a)with the express agreement of the parties, rescheduled the substantive hearing to occur at 12.00pm Australian Eastern Summer Time (9:00am WST) on 27 and 28 March 2025; and
(b)issued orders providing Mr Marsh with additional time, until 10 March 2025, to lodge materials on which he wanted to rely;
(c)squarely placed Mr Marsh on notice his application could be dismissed if the prescribed fee is not paid.
On 6 March 2025, the Tribunal issued listing notices, written orders and a notice to Mr Marsh in respect of the prescribed fee payable for his application.
Mr Marsh did not pay the prescribed fee and he lodged no materials with the Tribunal.
On 17 March 2025, the Tribunal issued a notice informing the Applicant the prescribed fee for his application had not been paid and his application could be dismissed if the fee is not paid.
Mr Marsh did not respond or pay the prescribed fee.
Representatives of the Minister lodged documents and a hearing book in accord with the Tribunal’s orders.
On 27 March 2025, the substantive hearing commenced at the time listed and previously agreed by the parties.
Without notice or explanation, Mr Marsh did not appear at the substantive hearing.
With the agreement of the Minister’s legal representative, the Tribunal stood the matter over in order to provide Mr Marsh with an opportunity to appear and the present his case.
On 28 March 2025, Mr Marsh appeared at the substantive hearing. He informed the Tribunal he did not have documents lodged on behalf of the Minister, which had been sent electronically and delivered in hard copy to the Yongah Hill Immigration Detention Centre.
With the agreement of the parties, in order for Mr Marsh to have an opportunity to review the documents, the Tribunal stood the hearing over to 12:00pm AEST on 31 March 2025 and reserving 1 April 2025 for any carry-over. The Tribunal noted the limited time available within the 84-day period imposed by s 500(6L) of the Act and placed Mr Marsh squarely on notice that:
(a)the discretion to dismiss his application on the ground he had not paid the prescribed fee was a live issue; and
(b)any further failure to appear might result in his application being dismissed forthwith.
On 28 March 2025, the Tribunal confirmed that Mr Marsh had been given the documents lodged for the Minister as well as a listing notice for the rescheduled hearing on Monday 31 March 2025.
Shortly before the scheduled start of the hearing on 31 March 2025, the Tribunal received an email from a Senior Border Force officer, stating:
Please be advised that Mr MARSH said he will not attend today’s ART hearing.
Mr MARSH did not provide any specific reasons.
Prior to commencement of the hearing, this information was confirmed orally.
The hearing commenced without Mr Marsh in attendance.
The Minister’s legal representative applied for dismissal of the application forthwith and made related submissions.
I am satisfied Mr Marsh has been given notice of the requirement to pay the prescribed fee orally and in writing.
Mr Marsh has not paid the discounted fee prescribed in rule 22(4) of the Administrative Review Tribunal Rules 2024 (Rules) for the purposes of s 296(2) of the ART Act. Provision is made in rule 24 for the prescribed fee to be paid within 6 weeks of the date on which the application is lodged:
(1) 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.
(2) For the purposes of section 98 of the [ART] Act, the time by which the fee must be paid is the end of the 6 weeks starting on the day the application is made.
Note:The Tribunal may dismiss the application under that section if the fee is not paid by that time.
The 6-week period elapsed on 6 March 2025.
Consequently, the discretion conferred by s 98 of the ART Act is enlivened:
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.
Exercise of the discretion requires careful consideration of the particular circumstances in the context of the legislative scheme for payment of fees to the Tribunal in respect of applications. The power to charge fees is set out in s 296(1) of the ART Act. There is no requirement in Div 3, Part 3 of the ART Act for an application to be accompanied by a fee. Consequently, there is no jurisdictional issue arising from non-payment of a fee.
In consideration of Mr Marsh’s failure to appear, the Minister submits his application should be dismissed under s 99 of the ART Act:
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.
Note 1: Tribunal case events include hearings, directions hearings and dispute resolution processes (see the definition of Tribunal case event in section 4).
Note 2: For how to appear at a Tribunal case event, see section 73.
I am satisfied Mr Marsh received notices of the date, time and place of the hearing on 27 March 2025 and the hearing carried over to 31 March 2025. Mr Marsh expressly agreed to the listing of each hearing. Additionally, he was given written notice of each hearing which were delivered to him. From this it follows the discretion to dismiss his application under s 99 is enlivened.
Mr Marsh informed me on 28 March 2025 that he wanted to proceed. This notwithstanding, his actions and failures before and after giving that assurance are not consistent with an intention to proceed.
The information provided by the Senior Border Force officers on 31 March 2025 is consistent with Mr Marsh making a choice not to proceed with his application. Whether or not that is correct, Mr Marsh made the decision not to attend the hearing on 31 March 2025 in full knowledge of the 84-day limit imposed by s 500(6L) of the Act. This was discussed with him on 5 March 2025 and again on 28 March 2025. In the context of the limited 84-day timeframe, I am satisfied Mr Marsh failed to proceed with his application on 31 March 2025 within a reasonable time. Consequently, the discretion to dismiss his application also arises under s 100(a) of the ART Act:
The Tribunal may dismiss an application made to the Tribunal if the applicant fails to do either of the following within a reasonable time:
(a) proceed with the application;
(b) comply with this Act or an order of the Tribunal in relation to the proceeding in relation to the application.
Dismissal of an application of the present kind is likely to have serious consequences for Mr Marsh. His Visa has been cancelled and his application for review of the decision of the Minister’s delegate to not revoke the cancellation will end. He will face the real prospect of remaining in immigration detention pending removal from Australia. This weighs heavily against exercising the discretion to dismiss his application.
Against this, Mr Marsh’s own actions and his failure to act must be weighed.
Mr Marsh informed me he has funds sufficient to cover the application fee. I have no reason to doubt this is correct. In consideration of the compensation Mr Marsh was paid in 2020, in all likelihood he is not impecunious. He informed me on 28 March 2025 that his mobile telephone was broken and he was not able to access the internet following a change in management of the immigration detention centre where he presently resides. He also informed me he has a brother in the detention centre and he would be able to use his brother’s mobile telephone if required. Proceeding on that information, it is likely Mr Marsh could have paid the prescribed $100 fee if he had chosen to do so prior to commencement of the hearing held over to 31 March 2025. He has given no explanation whatsoever for his failure to do so.
This does not comply with the legislative scheme for payment of fees to the Tribunal. In circumstances where an applicant simply chooses not to pay the fee prescribed and to ignore notices warning of the possible consequences of non-payment, the integrity of the fee payment scheme is challenged. This weighs heavily in favour of exercising the discretion to dismiss the application.
More generally, Mr Marsh’s right under s 55 of the ART Act to present his case and his obligation under s 56 to use his best endeavours to assist the Tribunal to meet its statutory objective in s 9 must be considered:
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; and
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c) is accessible and responsive to the diverse needs of parties to proceedings; and
(d) improves the transparency and quality of government decision‑making; and
(e) promotes public trust and confidence in the Tribunal.
Mr Marsh has not acted in a manner which is consistent with his obligation to assist. His repeated failure to communicate with the Tribunal in compliance with Tribunal orders and his failure to appear are not consistent with his obligation to assist. Mr Marsh’s failures have caused delays. Hearings have been rescheduled within the limited time available in order to provide procedural fairness to both parties, causing the Minister and the Tribunal an additional burden of consequential costs. This weighs in favour of dismissing his application.
Should the application be dismissed, subject to appeal in the Federal Court of Australia, there are few alternative options for Mr Marsh to obtain relief. It is conceivable he could ask for Ministerial intervention. By his own account, he could apply for grant of Australian citizenship by descent, but there is no evidence he has done so or, if he did so, how this would intersect with the operation of s 198 of the Act. This weighs against dismissing his application.
Weighing the relevant considerations in the particular circumstances, I am satisfied Mr Marsh’s application should be dismissed under s 98, s 99 and s 100(a) of the ART Act.
Date(s) of hearing:   27, 28 and 31 March 2025
Representative for the Applicant:      Self-represented
Solicitors for the Respondent:           M. Williams, Minter Ellison