1618210 (Refugee) - [2021] AATA 5527

1618210 (Refugee) [2021] AATA 5527 (5 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1618210

COUNTRY OF REFERENCE: Afghanistan
MEMBER:Simone Burford
DATE:5 July 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal confirms the decision to dismiss the application.

Statement made on 05 July 2021 at 1:45pm

CATCHWORDS
REFUGEE – protection visa – Afghanistan – dismissal decision – failure to attend Tribunal hearing – whether it is appropriate to reinstate the application – mental health issues – medical evidence of inability to attend hearing – disproportionate consequences – paranoia about medication and treatment – common law principles of agency – fitness to provide instructions – dismissal confirmed – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act, s 2A
Migration Act 1958, ss 425-427, 430
CASES
AKO17 v MIBP [2018] FCCA 2022
Li v MIBP [2017] FCCA 2326
Singh v Minister for Immigration and Border Protection & Anor [2018] FCAFC 184
SZGJO v MIMIA [2005] FMCA 1349
SZGRH v MIMIA [2006] FCA 1408
SZMME v MIAC [2009] FMCA 323

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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 September 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).
The review applicant was invited under s 425 of the Migration Act 1958 (the Act) to appear before the Tribunal on 21 April 2021 at 12:30 pm (WA time). This was a resumption of an adjourned hearing of the application. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place indicated in that invitation.
The first hearing was held on 21 December 2020. The Tribunal notes that the applicant attended the first hearing. An invitation was issued to the hearing, pursuant to s 425 of the Act, on 2 December 2020, stating that if he did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
The applicant was advised that the hearing would be resumed on 21 April 2021 by invitation issued on 6 April 2021.
On 14 April 2021, the applicant responded to the hearing invitation via his representative, indicating that he would attend the scheduled hearing
The applicant did not attend at the scheduled day and time. The applicant’s representative did attend. On 23 April 2021 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.
The applicant was notified of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1618210 (Refugee)

Details

AGLC: 1618210 (Refugee) [2021] AATA 5527
Case: [2021] AATA 5527
Decision Date: 5 July 2021

CaseChat Overview and Summary

The applicant, a citizen of Afghanistan, sought review of a decision to refuse him a protection visa. The applicant's original humanitarian visa was cancelled in 2014 on the basis that he was married upon arrival in Australia, thus not meeting the definition of a family unit member. This cancellation was affirmed by the Migration and Refugee Tribunal. Subsequently, his wife's partner visa application was refused. The applicant's current protection visa application was dismissed by the Tribunal, and he sought judicial review of this dismissal.

The primary legal issue before the court was whether the Tribunal had exercised its discretion reasonably in dismissing the applicant's protection visa application without a hearing, despite evidence suggesting the applicant suffered from mental health issues, including paranoia, which may have prevented him from attending the hearing. The court was required to consider whether the consequences of the dismissal were disproportionate given the applicant's alleged inability to attend due to his mental health condition.

The court considered the common law principles of agency and the applicant's fitness to provide instructions, particularly in light of medical evidence presented by the applicant's representative. This evidence included referral letters, medication details, and a psychiatric report, suggesting the applicant's mental health issues, including paranoia about treatment, impacted his capacity. However, the court found that the Tribunal's discretion to dismiss the application, while not subject to specific statutory criteria, must be exercised reasonably. The court ultimately determined that the dismissal of the application was appropriate in the circumstances.

The court confirmed the decision to dismiss the applicant's protection visa application. Consequently, the decision under review was taken to be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Act does not provide any criteria that must be taken into account by the Tribunal when deciding whether to reinstate the application or to confirm the decision to dismiss the application. However, the Tribunal’s discretion whether to reinstate the application or to dismiss the application is subject to the requirement that the discretion be exercised reasonably.[9] [9] Li v MIBP [2017] FCCA 2326 at [35] per Driver J in the sense in the sense contemplated in Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18.Submissions and evidenceEvidence and submissions In support of the request for reinstatement, the applicant’s representative submitted the following:·Statutory declaration of [Sister A], the applicant’s sister, dated 7 May 2021 annexing:oReferral letter from [Doctor A] to [Doctor B] dated 4 January 2021;oPhotocopy of a medication box for ‘[Drug 1]’ dated 19/3/2021 ([Doctor B]);oPhotocopy of a medication box for ‘[Drug 2]’ dated 19 March 2021 ([Doctor B]);oCopy of product recording ‘[Drug 1]’ on healthdirect.gov.au;oReferral letter from [Doctor C] to [Doctor B] dated 21 April 2021;o‘To whom it may concern’ letter from [Doctor C] dated 21 April 2021; appointment card for [Health Service 1] for 3 May 2021;oAppointment letter from [Health Service 2] dated 27 April 2021;oCopy of product recording ‘[Drug 1A]’ on healthdirect.gov.au.·Statutory declaration of [Mother A], the applicant’s mother, dated 7 May 2021;·Article: ‘Disengagement from mental health treatment among individuals with schizophrenia and strategies for facilitating connections to care: a review of the literature, Schizophrenia Bulletin, Vol 35, No 4, pp 696–703, 2009.·The Tribunal also had a letter from [Doctor B], consultant psychiatrist dated 15 March 2021 which was submitted by the applicant’s representative on 21 April 2021. The applicant’s representative also provided written submissions in support of the re-instatement request dated 7 May 2021. No further information or evidence has been provided as at the date of this decision.Background The applicant seeks review of a decision on 29 September 2016 refusing to grant him a protection visa. According to the delegate’s decision which the applicant submitted to the Tribunal, he is a citizen of Afghanistan. According to submissions made on 21 December 2020, the applicant originally arrived in Australia on [date range in] August 2009 as a dependent on his mother’s Refugee and Humanitarian (Class XB) (subclass 204) visa. The applicant’s wife lodged a Partner (Provisional) (Class UF) and Partner (Migrant)(Class BC) visa application (offshore) on 3 March 2011. On 21 January 2014 a delegate cancelled the applicant’s Humanitarian visa on the basis that the applicant was married when he came to Australia and therefore was not able to satisfy the definition of a member of the family unit of the applicant’s mother. He sought a review of that decision to the Migration and Refugee Tribunal (MRT) and the MRT affirmed the decision on 14 October 2014. His wife’s partner visa application was refused on 2 February 2015.

Decision

Reasons for decision

The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.DECISION The Tribunal confirms the decision to dismiss the application.Simone BurfordMember

Ratio Decidendi

Legal Principle Established

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