1510225 (Migration)

[2016] AATA 3853

1510225 (Migration) [2016] AATA 3853 (4 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr XI LU

CASE NUMBER:  1510225

DIBP REFERENCE(S):  CLF2015/40475

MEMBER:Andrew Mullin

DATE:4 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 04 May 2016 at 9:21am

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 10 July 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) Subclass 573 visa under the Migration Act 1958 (the Act).

2. On 7 April 2016 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).  He 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 did not consider it appropriate to reinstate the application.

5. The applicant sought reinstatement of the application on 14 April 2016, in the following terms:

   I’m writing this statement because I failed attend the hearing on 7^th of April, 2016.

   Firstly, I live in Parramatta and the hearing was held in the city.  My wife is pregnant, she felt really unwell in the morning on the date I need to attend the hearing.  I had to take her to see the GP in Hurstville.  It took me a long time driving from Parramatta to Hurstville especially during the peak hours in the morning.  I was worried about my wife if anything happen to her so I kept her company until she finished with GP.  After I make sure my wife is ok, I sent her home back to Parramatta.  I was planned to attend a hearing however it was too late to go to the hearing at that time.  It takes 40 mins drive from my home to the city.

   I appreciate that if you could understand my situation and give me another chance to attend the hearing.

6. On 15 April 2016 a Tribunal officer telephoned the applicant’s registered migration agent to advise that before making a decision on the request for reinstatement the Tribunal required a medical certificate from the general practitioner confirming there was a consultation with the applicant’s wife on the day of the hearing and identifying the time at which the consultation occurred.  The migration agent said he would inform the applicant of the Tribunal’s request.

7. On 22 April 2016 the Tribunal officer telephoned the migration agent once more to advise that the Tribunal was waiting for the applicant to provide the medical certificate and that it required a response by 29 April 2016, failing which it would finalise the decision on the basis that the applicant had failed to appear at the hearing.  The migration agent said he had passed the information on to the applicant and would contact him once more.

8. On 27 April 2016 the applicant telephoned an officer of the Tribunal stating that he had heard from his representative that the Tribunal required him to provide evidence but was not sure what evidence to provide.  It was explained to him that the Tribunal required a medical certificate from his wife’s general practitioner regarding her consultation on the day of the hearing.  The applicant said his wife is no longer seeing that particular doctor.  He could provide evidence of tests but was not sure if he could provide a certificate.  The Tribunal officer reiterated the Tribunal’s request and explained that the certificate should be provided by 29 April 2016.  The applicant confirmed he understood what was required.

9. On 28 April 2016 the Tribunal received a submission from the applicant’s migration agent in the following terms:

   Following last phone conversation, please find attached medical files for applicant’s spouse.  Those medical files were not issued on the date of hearing.  But it could show that there was a medical condition of his spouse. 

   The applicant could not provide any further evidence for reinstatement request.

10. Attached to the submission were a number of receipts for consultations at Hurstville City Medical Centre for Ms Zhu Zhu, on 24 and 29 March 2016 and 5 and 8 April 2016.  Also attached was a request for a pathology procedure (nuchal translucency) dated 5 April 2016.

11. Having considered all the information before the Tribunal I accept that the applicant’s wife is pregnant and that she has been consulting a doctor in Hurstville.  I am not satisfied there is anything to support the applicant’s claim that these circumstances prevented him from attending the Tribunal hearing scheduled for 7 April 2016.  I am satisfied that he was aware of the time and date of the hearing and the place at which it was to be held.  I consider that if he had had to attend the doctor’s surgery with his wife on that day there would be nothing to prevent him obtaining a certificate to that effect or, failing this, a receipt.  This would be so even if, as he claims, his wife no longer consults the doctor in question.  I consider that he, and his registered migration agent, understood the need to obtain such supporting documentation if the application was to be reinstated.  He has not provided a certificate or any other form of evidence to support his claim.

12. On this basis I am not satisfied that it would be appropriate to reinstate the application.

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

    DECISION

14. The Tribunal affirms the decision under review.

    Andrew Mullin
    Member