1706560 (Refugee)

[2017] AATA 3149

1706560 (Refugee) [2017] AATA 3149 (18 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706560

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Mila Foster

DATE:18 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2017 at 3:31pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Federal Circuit Court appeal – Non-appearance at hearing – Tribunal has no discretion to extend re-instatement timeframe – Decision under review dismissed

LEGISLATION
Migration Act 1958, ss 426A(1A)(b), 426A(1B), 426B(5), 426A(1E)

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 17 March 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).

2. On 1 December 2017 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 via email on 1 December 2017, 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, in accordance with s.426A(1B), and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision. Thus, in this case the reinstatement application had to be made by 15 December 2017.

4. The Tribunal received an email on 16 December 2017 purporting to be from the applicant which stated that he missed the hearing due to his illiteracy and that his friends had helped with his paperwork. The email was sent from an email address which was not the email address the applicant had provided to the Tribunal for the purposes of the review. I thus have doubts about whether the email was sent by the applicant or with his authority. However, even if it was, the email was not received within the 14 day period the applicant had to apply for reinstatement. The Tribunal does not have the discretion to extend the period of time within which a request for reinstatement can be made.

5. As the applicant did not apply for reinstatement of the application within the 14 day period, the Tribunal must, pursuant to s.426A(1E), confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.

   DECISION

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

   Mila Foster
   Member