1418995 (Refugee)

[2015] AATA 3901

1418995 (Refugee) [2015] AATA 3901 (17 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418995

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Fraser Syme

DATE:17 December 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 December 2015 at 10:35am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

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 [in] November 2014 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).

2. The Tribunal dismissed the applicant’s protection visa application under s.426A(1A)(b) of the Act as the applicant did not appear before it on 25 November 2015 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.426B(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 applicant applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, the Tribunal does not consider it appropriate to reinstate the application.

5. The applicant’s application for reinstatement is on the basis he did not receive the hearing invitation the Tribunal sent to him in the post on 13 October 2015. Nor did he receive the text messages the Tribunal sent to his mobile telephone on 18 and 24 November 2015 reminding the applicant of his hearing scheduled for 25 November 2015. In relation to the hearing invitation, he did not received it because he relocated to another city for work. He provides no explanation about the text messages, just stating unfortunately he did not receive those messages.

6. In relation to his change of address, the applicant states he informed the department about that. The applicant does not explain why he did not inform the Tribunal of his change of address. The applicant goes on to explain at the request of the department, he kept in regular contact with them. Upon his Medicare card expiring, he contacted the department [in] October 2015 and was informed to contact the Tribunal about his Medicare card. He claims he called the phone number given to him without success. He does not say who gave that number to him or why. The Tribunal notes the phone number he quotes is the phone number of a community immigration legal service, not of the Tribunal. He then re-contacted the department and was given a different number, which is the 1800 number of the Tribunal. After calling that number, he was given the number of the Tribunal’s registry in Sydney of the Migration and Refugee Division. When he called the Sydney registry, he did not have his file number. So he called again the next day. He does not explain the dates of his phone calls to the Tribunal’s Sydney registry. He does not explain what happened the second time he called. It appears from his application for re-instatement, that in or about October 2015 he was seeking to contact the Tribunal about his Medicare card.

7. It is convenient to note here the Tribunal’s records indicate the first time the applicant telephoned the Tribunal was [in] December 2015. He told Tribunal staff he changed address almost a year earlier. He claimed he did not receive the hearing invitation. He claimed he had attempted to telephone the Tribunal before but no one answered. He did not provide any dates. Later on the same day, Tribunal staff spoke with the applicant using an interpreter in the Bengali and English languages.  The applicant claimed he did not receive the hearing reminder text messages the Tribunal sent to him, but confirmed the mobile telephone number the Tribunal used was correct. He said he must have turned off his mobile telephone as the reason why he did not receive the text messages. He provided the Tribunal with his current residential and email addresses. The applicant and the Tribunal officer had a conversation about re-sending the interim dismissal and information on how to apply for re-instatement to him. There are no Tribunal records of the applicant contacting the Tribunal to renew his Medicare Card. The Tribunal is doubtful the applicant turning off his mobile phone would prevent him from receiving the text messages from the Tribunal reminding him of his scheduled hearing.

8. Further causing the Tribunal to doubt the applicant’s explanation is the Tribunal’s records indicate on 7 December 2015, the applicant again telephoned the Tribunal. He spoke with a Bengali speaking Tribunal officer about receiving the interim dismissal. He said did not know any review application was lodged with the Tribunal on his behalf. This contradicts information in his application for reinstatement where he states the lawyer who represented him before the department told him on refusal of his visa he could apply for review. Also that he spoke with a second lawyer about applying for review, but had to prepare a sum of money. A letter from his former lawyer accompanying the review application indicates the former lawyer made the review application on instructions from the applicant (albeit they did not represent the applicant otherwise). The review application form is signed on behalf of the applicant by the former lawyer. The applicant did not raise a lack of knowledge of the existence of his review application in his application for reinstatement Rather, the application for reinstatement includes information which indicates the applicant was aware of the existence of the review application. This causes the Tribunal to doubt the applicant had no knowledge of his applying for review. 

9. Returning to the applicant’s reinstatement request, the applicant claims he called the Tribunal again and obtained his case number and the details of his lawyer. He then telephoned the lawyer. He does not provide any date of that call nor does he name the lawyer. He claims the lawyer told him his hearing was on 25 November 2015. The lawyer forwarded the hearing invitation letter to him. Again, no dates are provided.  

10. This part of the applicant’s request for re-instatement is something which weighs heavily on the Tribunal. For the lawyer to be able to forward a copy of the Tribunal hearing invitation to the applicant, indicates the lawyer had that document. This raises the question if the applicant’s lawyer had that document, why did the lawyer not inform the applicant about the hearing? What is more concerning is the Tribunal records indicate the applicant has not appointed any lawyer to represent him in relation to his review application. The Tribunal sent the hearing invitation to the residential address the applicant nominated in his review application, which is a suburban address, not the address of a law firm. The Tribunal considers it improbable the hearing invitation the Tribunal sent to a residential address would come into the possession of an unknown lawyer, moreover, a lawyer who is not the authorised representative of the applicant, and that lawyer would also not inform the applicant of receiving the hearing invitation. These implausibilities lead the Tribunal to doubt the credibility of the applicant’s explanation as to why he did not receive the hearing invitation.

11. The Tribunal is willing to accept the applicant has moved address. The request for reinstatement though does not include an explanation why he did not notify the Tribunal of this change of address prior to telephoning the Tribunal on 2 December 2015. Impliedly if he did not know he had an application before the Tribunal, it would explain why he only notified the department of his change of address. For the reasons set out above, the Tribunal rejects however that applicant did not know he had a review application ongoing before the Tribunal. The Tribunal rejects too the applicant did not receive the text messages sent to his mobile telephone. On the basis of the Tribunal’s experience, the Tribunal considers it reasonable to conclude those messages would have displayed on his mobile telephone upon his next turning it on.

12. Albeit the Tribunal is willing to accept the applicant may not have received the hearing invitation sent to him in the post due to his not notifying his change of address, the two text messages would have put the applicant on inquiry to contact the Tribunal about the hearing scheduled for 25 November 2015. He did not do that. The Tribunal rejects too that an unnamed lawyer received the hearing invitation, it follows that the Tribunal rejects the unnamed lawyer failed to inform the applicant of the hearing until after the applicant contacted the unnamed lawyer.

13. The Tribunal is mindful the applicant is applying for a protection visa. The Tribunal acknowledges too that the applicant has now notified it of his change of address. However, three matters weigh against those considerations. Firstly, the Tribunal finds the applicant has not provided a credible explanation as to why he did not inform the Tribunal of his change of address. Secondly, it was the applicant’s failure to notify the Tribunal of his chance of address which led to his not receiving the hearing invitation. The Tribunal fulfilled its obligation to the applicant by sending the hearing invitation to the residential address at which he authorised it to contact him. The applicant did not inform the Tribunal of his change of address until after the interim decision to dismiss his application. Thirdly, although it is not a requirement under the legislation, the Tribunal as a courtesy sent two text messages to the correct mobile telephone number of the applicant. The Tribunal has rejected his claims not to have received those text messages and his failure to make any inquiries with the Tribunal upon receiving those text messages further compounds the applicant’s failure to appear before the Tribunal at the hearing scheduled for 25 November 2015.

14. It is for the above reasons in the present circumstances, the Tribunal does not consider it appropriate to re-instate the applicant’s application for review.

15. The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.

    DECISION

16. The Tribunal affirms the decision under review.

    Fraser Syme
    Member