1619562 (Refugee)

[2020] AATA 817

1619562 (Refugee) [2020] AATA 817 (12 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619562

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Nathan Goetz

DATE:12 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 12 March 2020 at 12:25pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – no appearance by applicants at hearing – application for review dismissed – application for reinstatement by third applicant – tribunal’s email in junk email folder – looking for wok an place to live – onus on applicant to check for correspondence – co-applicant parents left Australia – dismissal of application for review confirmed – decision under review affirmed

LEGISLATION            
Migration Act 1958 (Cth), ss 425, 426(1A)(b)

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 decisions made by a delegate of the Minister for Immigration on 26 October 2016 to refuse to grant the visa applicants protection visas under the Migration Act 1958 (the Act).

2. On 2 December 2015 the applicants ([the father], [his wife] and [their daughter]) applied for protection visas. The applicants were invited to contact the Department to arrange an interview to discuss their claims. The applicants did not do so.

3. Following the delegate decision to refuse the visas, on 21 November 2016 the applicants applied to the Tribunal for a review of the decisions.

4. The review applicants were invited under s.425 of the Migration Act 1958 to appear at the Tribunal on 25 February 2020 at 12noon for a three hour hearing. This invitation was sent to the contact email address provided in the review form. The invitation stated that if the applicants 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 hearing invitation requested that the applicants complete a ‘Response to Hearing Invitation’ and return the form to the Tribunal. The Tribunal never received this completed form. The applicants did not appear before the Tribunal on the day and at the scheduled time and place. On 25 February 2020 at 3pm the Tribunal dismissed the application under s.426A(1A)(b) of the Act.

5. The applicants were 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 applicants were 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.

6. [The daughter] applied for reinstatement to the Tribunal. She did this by email on 5 March 2020. Her parents have not applied for reinstatement.

7. In summary, her email declared that she did not miss the hearing on purpose. She failed to appear because she was not aware that the hearing invitation had been set. She wrote that the email went to her junk folder and she was not notified. She missed this email because she was busy looking for a new job as she had been unemployed for a whole month, and had been looking for a new place to live. She failed to remind herself to check for responses from the Tribunal. She did not check her emails daily and thoroughly. She only became aware when she received an email on 25 February 2020 which was the day of the hearing. The Tribunal understands this to mean the initial dismissal letter. She hoped that the Tribunal would reconsider her application and promised to be more careful in the future. She has considered Australia as her home for the past few years and she has nowhere else to go.

8. The Tribunal has considered the applicant’s reasons for requesting reinstatement, but is not persuaded that it should accede to her request for the following reasons.

9. It was the applicant who nominated her email address as a means of correspondence from the Tribunal. To that end, it was her obligation to ensure that she maintained access to her email address to ensure that she received all correspondence from the Tribunal. The refusal notification letter dated 26 October 2016 sent to the applicant from the Department provides the Tribunal email address. This was the same email address from which the Tribunal hearing invitation was sent. The applicant could have done a number of things to ensure that she received correspondence from the Tribunal. For example, she could have saved the Tribunal email address to her contact list to that any future email from that email address was recognised as a safe contact, meaning that correspondence would go to her inbox. She could have disabled her spam filter, or if that was beyond her technical abilities, she should have checked her spam folder daily. Alternatively, she could have lodged a change of address form with the Tribunal to remove her email as an address for correspondence to avoid the chance of the email going to a spam folder.

10. The applicant also failed to adequately explain how the invitation hearing was sent to her spam folder, yet she received the initial dismissal decision which was sent to her from the same email address. The Tribunal is somewhat sceptical that the hearing invitation was actually caught by the spam filter in light of the fact that she was able to receive the initial dismissal application from the same Tribunal email address, but is willing to give the applicant the benefit of the doubt about this matter.

11. However, just because the hearing invitation was placed into her spam folder does not mean that the applicant was not adequately and properly notified of the hearing. As discussed above, it was incumbent on the applicant to take all necessary steps to ensure that she was able to receive correspondence at her nominated email address.

12. The applicant’s suggestion that she was not notified because the invitation was sent to her spam folder is akin to failing to check your mailbox for letters, or receiving a notice from Australia Post that they were unsuccessful in their delivery to your house, requiring you to attend the Post Office, and you failing to do so. It is regrettable that the applicant was busy looking for a new job for a whole month as well as looking for a new place to live, but she should have prioritised her review hearing above all else. The applicant was not incapacitated and unable to attend the hearing.

13. Given the applicant lodged her protection visa application in 2015, failed to respond to the delegate request to arrange an interview, and then failed to appear at the Tribunal hearing in 2020, the Tribunal is satisfied that the appropriate course is to not reinstate the application.

14. The Tribunal is conscious of the fact that it is dealing with a protection visa application and the consequences of the decision to confirm the initial dismissal means that the decision of the delegate stands. The Tribunal does note, however, that the applicant was not raising her own claims for protection, and instead sought to meet the protection criteria on the basis that she was a member of the same family unit as her father. The Tribunal understand that the applicant has considered Australia as her home for the past few years and that she may feel that she has nowhere else to go. She is, however a citizen of Indonesia and information provided by the Department indicates that her parents, with whom she travelled to Australia, have now left the country.

15. Given all the circumstances, the Tribunal is not satisfied that the appropriate course is to reinstate the application.

    DECISION

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

    Nathan Goetz
    Member