1601273 (Refugee)

[2018] AATA 234

1601273 (Refugee) [2018] AATA 234 (5 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601273

COUNTRY OF REFERENCE:                  India

MEMBER:Joseph Lindsay

DATE:5 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal confirms the decision to dismiss the application.

Statement made on 05 February 2018 at 9:59am

CATCHWORDS

Refugee – Protection visa – India – Applicant failed to attend hearing – Medical certificate provided – Reinstatement of the application – Did not provide additional medical advice – Application dismissed

LEGISLATION

Migration Act 1958, ss 426A, 426B

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 on [date] January 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).

2. On 13 December 2017 the applicant was invited to attend a hearing on 17 January 2018. On the morning of 17 January 2018, the applicant failed to attend the hearing. After the hearing, the Tribunal received an email from the applicant indicating that he did not attend the hearing due to medical reasons. The applicant provided a medical certificate to the Tribunal and requested another hearing date. As a result, the Tribunal granted the applicant’s request and wrote back to the applicant advising that the new hearing date was 19 January 2018. Again the applicant failed to attend the hearing on 19 January 2018. After the hearing, the Tribunal received another email from the applicant advising that he did not attend the hearing due to medical reasons and indicated that he would consult a medical practitioner. However, the applicant provided no further advice from a medical practitioner in relation to his claimed health condition.

3. On 19 January 2018 the Tribunal dismissed the application under s.426A(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. On the same date the Tribunal advised the applicant of this decision and emailed to him 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 he could apply to the Tribunal, in writing, for reinstatement of the application by 2 February 2018. The applicant was advised that in a reinstatement application he should set out why he failed to appear at the hearing and to provide any other information he wanted the Tribunal to take into consideration when deciding whether his reinstatement application should be granted.

4. On 2 February 2018, the Tribunal received an email from the applicant stating:

   I was sick during the days of my hearing. I was in so much pain as i already attached my medical certificate with my previous email. When the second hearing was to be attended i was so much in pain and took antibiotics and pain killers, because of that i couldnt get up on time. And even i was awake i couldnt attend because i was not able to walk because of so much pain. I was in bed for four days taking medicine. I did not went to hospital again because my doctor gave me five days of medicine amd i was taking those pain killers and staying in bed. Please reinstate my hearing. It would be appreciated. Thanks.

5. The Tribunal has considered the applicant’s submission of 2 February 2018. It is noted that the applicant has not provided any further advice from a medical practitioner in relation to his claimed medical situation. Accordingly, the Tribunal does not accept that there are sufficient reasons to reinstate the application. The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.

   DECISION

6. The Tribunal confirms the decision to dismiss the application.

   Joseph Lindsay
   Member