WCFW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a citizen of New Zealand, had been convicted of two counts of indecently dealing with a child who was a lineal relative, for which he received cumulative sentences of imprisonment totalling 16 months. Consequently, his visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth). The Applicant sought revocation of this cancellation under section 501CA(4) of the Act. The review was heard by Deputy Boyle P of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the Applicant had made representations in accordance with regulation 2.52(2)(b) of the *Migration Regulations 1994* (Cth) within the prescribed 28-day period, which is a prerequisite for the Minister's power to revoke a visa cancellation under section 501CA(4)(a) of the Act. A secondary issue, to be considered if the preliminary issue was satisfied, was whether there was "another reason" why the original decision to cancel the visa should be revoked, having regard to Ministerial Direction 90.

Deputy Boyle P found that the Applicant's representations were not made within the required timeframe. While the Applicant had provided his request for revocation to a prison manager on 29 June 2020, which was within the 28-day limit, the manager's email to the Department on 2 July 2020 was outside this period. The Tribunal noted that the manager's subsequent explanations regarding processing delays and the document being found in her draft box did not alter the fact that the representations were not submitted to the Department within the statutory timeframe. Consequently, the Tribunal concluded that the condition precedent for the Minister's power to revoke the cancellation under section 501CA(4)(a) had not been met.

As the preliminary issue was not satisfied, the Tribunal did not proceed to consider the substantive question of whether there was "another reason" to revoke the visa cancellation. The Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the Applicant's visa.