1620540 (Refugee)

[2018] AATA 4367

1620540 (Refugee) [2018] AATA 4367 (18 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620540

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Christopher Smolicz

DATE:18 October 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 18 October 2018 at 2:21pm

CATCHWORD
REFUGEE – Protection visa – Indonesia – actual or imputed political opinion – non-appearance at hearing – medical reasons – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 362B, 426A, 426B

CASES
Li v MIBP [2017] FCCA 2326

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 1 November 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).

2. On 2 October 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.

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. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

   Consideration of evidence and submissions

5. If the applicant requests reinstatement, the Tribunal may either reinstate the application if it considers it ‘appropriate to do so’ or confirm the dismissal.[1] What is relevant to this determination depends upon the particular circumstances of the case, but may include having regard to reasons given by the applicant.[2]

   [1] ss.362B(1C)/426A(1C).

   [2] See, for example, Li v MIBP [2017] FCCA 2326 (Judge Driver, 22 September 2017) at [36]-[38] in which the Court held that it was reasonable for the Tribunal to not reinstate an application where the applicant was correctly invited to a hearing, the Tribunal attempted to contact the applicant by phone prior to the hearing (as the hearing invitations were not successfully delivered), and medical evidence provided by the applicant after the hearing was insufficient to support a claim that the applicant was too ill to attend. The medical evidence was a referral for a pathology test which was dated five days after the hearing and did not specify what condition he was suffering from on the date of the hearing or indicate that he was incapacitated on that day.

6. The applicant is [age] year old, Hindu male born in Bali Province, Indonesia. On 19 February 2014 he arrived in Australia as the holder of a Visitor (Sponsored Family) Subclass 600 visa. The visa ceased on 19 March 2014.  On 7 April 2014 he applied for a protection visa.

7. The applicant took part in a protection interview. He stated that since 1999 until 2014 he worked for [companies]. He started working as [one position] and subsequently as [another position]. In accordance with his contract he usually spent 10 months [away] from Indonesia. He ceased working in January 2014 and flew back to Indonesia via [another location]. He claims to fear persecution in Indonesia because of his actual or imputed political opinion. The Department rejected the applicant’s claims. The applicant applied for the Tribunal to review the Department’s decision.

8. On 6 July 2018 the Tribunal wrote to the applicant and advised him that his file is being prepared for hearing. He was advised to provide any evidence that is relevant to his claims. The applicant did not respond to the Tribunal letter.

9. The Tribunal wrote to the applicant on 21 August 2018 and advised him the matter was listed for hearing on 24 September 2018. The invitation stated 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 responded to the hearing invitation and said that he would be attending the hearing.

10. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place and the Tribunal dismissed the application.

11. On 3 October 2018 the applicant contacted the Tribunal and stated that he did not attend the hearing because of an accident with his feet. He claimed that he could not walk properly for three days. The applicant did not provide any further evidence.

12. The Tribunal contacted the applicant and requested that he provided a detailed medical report outlining why he was unable to attend the hearing.

13. On 9 October 2018 the applicant emailed the Tribunal and said he did not go to a doctor because of the cost. He emailed a photograph of the outside packaging of a box of “Dencorub”. No further evidence was provided to explain the applicant’s non-attendance at the hearing.

14. The Tribunal accepts that from time to time applicants can unexpectedly become unwell and not be able to attend a hearing due to medical reasons. The Tribunal finds that in such circumstances it is appropriate for the applicant to provide credible evidence to explain the non-appearance. The Tribunal has considered the evidence provided by the applicant explaining his non-appearance and in all the circumstances does not find it credible.

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

    DECISION

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

    Christopher Smolicz
    Member