1417963 (Migration)

[2016] AATA 3079

1417963 (Migration) [2016] AATA 3079 (11 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harjeet Singh

CASE NUMBER:  1417963

DIBP REFERENCE(S):  CLF2014/39501

MEMBER:Alison Mercer

DATE:11 January 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 11 January 2016 at 12:37pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 October 2014 to refuse to grant the visa applicant a Student (Temporary) (Class TU) subclass 572 visa under the Migration Act 1958 (the Act).

2. On 18 December 2015, the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3. The 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). The 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.

4. The Tribunal received a reinstatement request from the applicant’s migration agent on 4 January 2016. For the following reasons, the Tribunal does not consider it appropriate to reinstate the application.

5. It is relevant to set out the history of this matter in more detail in order to provide context for the Tribunal’s reasons. The applicant applied to the Department of Immigration for a Class TU subclass 572 visa on 13 March 2014. The delegate decided to refuse to grant the visa on 24 October 2014 because the delegate found that the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations.  This required that the delegate was satisfied that the applicant intended genuinely to stay in Australia temporarily, having regard to his circumstances, immigration history and any other relevant matter. 

6. The Tribunal received a review application from the applicant on 3 November 2014.  It was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Pawan Kumar Bhambi, as his representative and authorised recipient for correspondence for the purposes of the review.

7. On 7 May 2015, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 12 June 2015. The applicant was requested to provide a copy of his current Confirmation of Enrolment (CoE), documents evidencing any past study in Australia and an explanation of any gaps in his enrolment/study history and any documentary evidence relevant to his explanation. He was requested to provide the above information no less than 7 days prior to the hearing, and to indicate within 7 days of the invitation letter whether he intended to attend the hearing.  No information was provided by the applicant or his agent in response to the Tribunal’s letter.

8. On 11 June 2015, the Tribunal wrote again to the applicant via his agent to advise that the hearing had to be postponed due to the circumstances beyond the Tribunal’s control as the Presiding Member was unable to conduct the hearing on that date, but that they would be advised of the new hearing date shortly.

9. On the same date, the Tribunal sent a letter to the applicant via his agent inviting him to a hearing on 10 July 2015, and reiterating the request that he provide confirmation of his attendance, and information concerning his enrolment, study gap and study history in Australia 7 days prior to the hearing.

10. The Tribunal did not receive any submissions or documents from the applicant or his agent.  On 10 July 2015, the Tribunal received a request from the applicant’s agent for a postponement of the hearing that day as the applicant was ill and could not attend.  A medical certificate was provided dated 9 July 2015 stating that the applicant was receiving medical treatment from 9 to 10 July 2015 inclusive and would be unfit for his usual occupation in that period.

11. On 15 July 2015, the Tribunal sent an email to the applicant’s agent advising that the medical certificate and postponement request had been received at 11am on 10 July 2015, when the applicant’s hearing was scheduled for 9.30am on that date.  The email further advised that the Presiding Member did not consider that the medical certificate provided adequately stated why the applicant was not able to attend the hearing (as opposed to being unfit for his ‘usual occupation’).  The Tribunal advised, however, that after careful consideration, the Presiding Member agreed to schedule another hearing for the applicant, the details of which would be notified in due course.

12. On 16 November 2015, the Tribunal wrote to the applicant via his agent and invited him to attend a hearing on 18 December 2015.  The applicant and his agent were again requested to provide confirmation of their attendance and any submissions and/or documentary evidence on which they wished to rely by 11 December 2015.  The Tribunal further advised that as it had rescheduled the hearing for a second time, it did not anticipate any further rescheduling.

13. The Tribunal did not receive any material from the applicant or his agent.  They did not indicate whether or not the applicant would attend the hearing.  As noted above, neither the applicant nor his agent attended the hearing at 2pm on 18 December 2015.  The Tribunal did not receive any request for adjournment or reasons for the applicant’s absence.

14. As noted above, the Tribunal dismissed the applicant’s review application at 4.23pm on 18 December 2015, and he was notified via his agent by letter dated 21 December 2015.  The applicant was advised that he could apply for reinstatement of his review application and must do so by 4 January 2016.

15. On 4 January 2016, the applicant’s agent made a request on behalf of the applicant to have the review application reinstated, stating ‘I have been advised by the applicant that due to the applicant’s family issues, the applicant was unable to attend the hearing on 18/12/2015.  Applicant is married now and was stuck in a family clash between his wife and his parents in law.  Applicant humbly request [sic] the AAT department to reinstate the application and is ready to attend the first available hearing rescheduled by AAT department. This is an urgent request to reinstate the review application for [the applicant] and to reschedule the hearing date. Please give a generous consideration to this request and please confirm with us the new hearing date.  Thank you.’

16. The Tribunal has reviewed the evidence before it, and makes the following findings:

    ·it is satisfied that the hearing invitations sent to the applicant via his agent (his authorised recipient for correspondence) on 7 May 2015, 11 June 2015 and 16 November 2015 complied with the relevant statutory requirements;

    ·it is satisfied that the applicant received these invitations via his agent, as demonstrated by the request made by them to postpone the hearing scheduled for 10 July 2015 on that date, and the fact that the Tribunal’s records indicate that all invitations were successfully transmitted to the agent’s nominated email address;

    ·it is further satisfied that the applicant was sent a reminder by SMS message to his nominated mobile telephone number prior to each hearing date;

    ·the Tribunal had advised the applicant and his agent in its hearing invitation letter of 16 November 2015 that it had rescheduled his hearing to 18 December 2015 but did not anticipate any further rescheduling as the hearing had already been rescheduled twice.  The Tribunal notes that the letter of 16 November 2015 specifically contains the following advice: ‘If you are not able to attend the hearing you should advise us as soon as possible.  Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment.  If we do not advise you that an adjournment has been granted, you must assume the hearing will go ahead.  If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss the application for review without any further consideration of the application or the information before us;’

    ·all hearing invitations sent requested the applicant to confirm within 7 days whether he would attend the hearing or not, and that he provide any written submissions and/or documentary evidence, including evidence of his current enrolment, his previous studies and an explanation for any previous gaps in study, at least 7 days before the hearing date. The applicant and his agent failed to do so on each occasion a hearing was scheduled.  No evidence of his current enrolment, his previous studies and an explanation for any previous gaps in study has been provided to date;

    ·the applicant provided a medical certificate on the date of the second hearing on 10 July 2015 indicating that he was unfit to attend, which the Tribunal accepted.  However, neither he nor his agent made any contact with the Tribunal prior to or on 18 December 2015 (the third hearing date) to explain his absence or to request an adjournment; and

    ·the applicant subsequently applied for reinstatement after receiving notification that his application had been dismissed, and stated that he was unable to attend the hearing due to a family clash between his wife and his parents. He provided no explanation of why the family dispute prevented him from attending the hearing on 18 December 2015 nor why it prevented him from advising the Tribunal on or before that date of his non-attendance, nor why it prevented the applicant requesting an adjournment in a timely manner.

17. The Tribunal is satisfied the applicant was validly notified of the hearing on 18 December 2015 and was aware of the time and date of the hearing.  The Tribunal considers that he has not provided any reasonable explanation for his failure to appear or to seek an adjournment. The hearing invitation clearly stated that the Tribunal might dismiss the application if he did not attend the scheduled hearing. He has had the benefit of the assistance of a registered migration agent throughout the review process. 

18. The Tribunal is satisfied that s.362B(1C) allows the Tribunal to reinstate the review application if ‘it considers it appropriate to do so.’  Having carefully considered the applicant’s request, and the circumstances surrounding his application and his non-appearance, as far as they can be ascertained, and for the reasons given above, the Tribunal is not satisfied that it is appropriate to reinstate the application.

19. Accordingly, the decision to dismiss the application is confirmed and it follows that the decision under review is taken to be affirmed pursuant to s.362B(1F).

    
    
    

    DECISION

20. The Tribunal affirms the decision under review.

    Alison Mercer
    Member