1706014 (Refugee)

[2021] AATA 5350

1706014 (Refugee) [2021] AATA 5350 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706014

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE:7 December 2021

PLACE OF DECISION:  Perth

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

Statement made on 07 December 2021 at 9:19am

CATCHWORDS
REFUGEE – protection visa – Malaysia – non-appearance before the Tribunal ­– application dismissed – no valid reason for reinstatement – dismissal confirmed – 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 and Border Protection on 21 March 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. On 11 November 2012, the Applicant was invited to attend appear before the Tribunal at a hearing on 6 December 2021 at 10:00am (WST) to give evidence and present arguments.  On 23 November 2021, the Tribunal received a hearing response from the Applicant via email.  This response stated that the Applicant would attend the scheduled hearing for 6 December 2021.

3. The applicant did not appear before it to give evidence and present arguments at 10:00am (WST) on 6 December 2021, being the time and date of the scheduled hearing.  At 10:10am (WST) the Tribunal tried to contact the Applicant by placing a call on her nominated telephone number, without success.

4. At this time, 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 10:00am (WST) being the time and date of the scheduled hearing.

5. At 11:12am (WST), the applicant was notified of the dismissal decision by email message 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.

6. The applicant applied for reinstatement of the application within 14 days after receiving notice of the decision.  At 1:16 pm (WST) on 6 December 2021 the Applicant emailed the Tribunal as follows:

   I am writing in relation to the application for review on 6 December 2021 at 10.00am as I’m not attended to hearing.. because I’m a bit confused, in the morning me and my husband going to attend the hearing. We arrived at perth city around 9.15am perth time, then we park the car.. after we walking down to AAT, we double checked the email about the hearing then we found the 1st email on 10 November 2021 about attending hearing on 10 December 2021 then we freeze for the moment at front of the shop.. after we decided maybe they are extended to 10 December 2021 we thought.. after that we going back to home and I received the emailed about my dismissal attendance to hearing, I’m really confused what happened actually, immediately i ask my husband to bring me to the AAT and we arrived at 12.10pm then asking about my dismissal hearing today, they are said i have to Reinstatement again about my application.. Hopefully i can get another chance, here I attached my parking transaction paid at morning and about confusing about extending the hearing and ticket parking right in front the AAT building.. thank you

7. Accordingly, the Tribunal finds that the applicant was correctly notified of the scheduled hearing. 

8. The Tribunal has considered the foregoing submission made by the applicant in seeking reinstatement of their application in their email of 6 December 2021.  The Tribunal finds that the applicant has not disclosed a valid reason for their failure to attend the scheduled hearing with the Tribunal or to notify the Tribunal of particular logistic or financial difficulties prior to the date advised for their original hearing.  On this basis, the Tribunal refuses the applicant’s reinstatement request.

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

   DECISION

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

    Dr Colin Huntly
    Member