1604064 (Refugee)

[2020] AATA 2368

1604064 (Refugee) [2020] AATA 2368 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604064

COUNTRY OF REFERENCE:                   China

MEMBER:Ms Christine Long

DATE:11 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 11 June 2020 at 12:24pm

CATCHWORDS

REFUGEE – protection visa – China – dismissal decision – failure to attend Tribunal hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 Cth), 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 24 February 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).

2. On 18 January 2019 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.

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. On 1 February 2019 the Tribunal received a letter dated 28 January 2019 from the applicant referring to the hearing invitation from the Tribunal dated 18 December 2018 inviting her to a hearing on 18 January 2019 stating, “Because I moved from Sydney to Melbourne and lived with my Australian PR husband at our new address (which is provided by the applicant) I missed your letter. When my old landlord passed me the letter, it was too late. I apologize. Please send me a new date for the hearing. Thank you”.

5. On receipt of the applicant’s letter the Tribunal considered reinstating the matter as it appeared from that letter that the applicant was not aware of the hearing date.  For the following reasons however, having regard to the whole of the circumstances of this matter, and giving consideration to the serious consequences of non reinstatement for the applicant, the Tribunal does not consider that it is appropriate to reinstate the application and offer the applicant another hearing date as she requests.

6. The applicant’s application for review of the delegate’s decision refusing her a protection visa was received at the Tribunal on 24 March 2016. In that application the applicant provided an address in [Suburb 1], NSW as the postal address to which the Tribunal should send correspondence to her about her application. She did not appoint an authorised recipient for correspondence. She ticked “no” to the question asking whether she agreed to receive correspondence to her by e mail; she did not provide an e mail address. She did however provide a mobile telephone number as her “contact number(s) in Australia”. She signed her application form on 22 March 2016 which included a declaration, amongst other things, that she understood the information in the form and information pages provided, that the information she provided in the form was complete and correct, that she would inform the AAT of any changes in her circumstances, that she understood that if she changed her contact details and did not inform the AAT of her new address, the AAT may proceed to make a decision about her case even if it could not contact her. On 24 March 2016 the Tribunal sent the applicant an acknowledgement of her application for review noting that it was important that she tell the Tribunal immediately if she changed her contact details. She did not inform the Tribunal of any change to her contact details until the letter to the Tribunal dated 28 January 2019 following the initial dismissal of her application by the Tribunal on 18 January 2019.

7. The Tribunal notes that on 14 August 2018 the Tribunal wrote to the applicant at her [Suburb 1] address, her correct address for correspondence, asking about her hearing availability; this letter was not returned to the Tribunal and there is no reason to think that the applicant did not receive that letter. As noted above, on 18 December 2018 the Tribunal sent the applicant a hearing invitation inviting her to a Tribunal hearing at 9 am on 18 January 2019; the letter was properly sent to her correct address for correspondence at [Suburb 1] and was not returned to sender. The applicant did not appear before the Tribunal at the scheduled time for the hearing and the applicant did not otherwise contact the Tribunal about her non appearance until her letter to the Tribunal dated 28 January 2019 received on 1 February 2019. Given these matters, on 18 January 2019 the Tribunal dismissed the application under s.426A(1A)(b) of the Act when the applicant failed to appear at the scheduled hearing time; notification of the dismissal, and information about the dismissal and the availability of an application for reinstatement was sent to the applicant at her [Suburb 1] address, the correct address for correspondence as advised in her application for review.

8. The Tribunal accepts that the applicant did not receive the hearing invitation sent to her by the Tribunal on 18 December 2018. The Tribunal finds that she did not keep the Tribunal informed of her up to date contact details as she declared she would do in her application for review and she did not heed the request contained in the acknowledgment of application letter sent to her by the Tribunal on 24 March 2016 that she tell the Tribunal immediately of changes to her contact details. In that letter the Tribunal advised that if she did not keep her contact details updated “you might not receive an invitation to a hearing or other important information and your case may be decided without further notice”.

9. The Tribunal does not accept however that the applicant did not know about the Tribunal hearing and the hearing date. Tribunal records indicate that she was sent two SMS messages by the Tribunal about the hearing to her correct contact mobile phone number in Australia as advised by her in her application for review. The SMS messages were sent on 11 January 2019 and on 17 January 2019 which was the day before the hearing. The messages reminded the applicant that “your AAT hearing is on 18/01/19. Please check the hearing invitation to confirm details. Please do not reply. Any questions call 1800 228 333.” Tribunal records do not indicate that the SMS reminders about the hearing failed to send to the applicant’s mobile phone number and there is no evidence before the Tribunal that the applicant did not receive those SMS reminders. The applicant did not contact the Tribunal in response to those SMS messages.

10. The Tribunal has considered the applicant’s reason for non appearance at the Tribunal hearing and her request for re instatement but concludes the application should not be reinstated. The Tribunal notes that, regrettably, there has been some delay on the part of the Tribunal in responding to the applicant’s request for reinstatement due to the illness of the Member and the more recent COVID-19 situation but the Tribunal concludes that the applicant has not suffered prejudice because of that delay. The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.

    DECISION

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

    Ms Christine Long
    Member