1706929 (Refugee)

[2019] AATA 5640

1706929 (Refugee) [2019] AATA 5640 (10 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706929

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Justin Meyer

DATE:10 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 10 December 2019 at 12:17pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – application for protection refused – no appearance by applicant at review hearing – application for review dismissed – application for reinstatement, claiming illness on hearing day – dismissal of application confirmed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 426(1A)(b), 426B(5)

Migration Regulations 1994 (Cth), Schedule 2

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

2. On 22 November 2019 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.

5. On 4 December 2019 the applicant wrote to the Tribunal in these terms:

   “I am writing in relation to request a second hearing appointment due unable to attend on 22 November 2019 with the reason “I am not feeling well” that day (22 November 2019).

   My health was not in a good condition. I am sorry for the person who handling my case.

   To able writing this is afried (sic) that is with me on 4 December 2019.

   If possible and my request will be granted, I would like to have an interpreter service due to my English is not very good.

   One last thing to mention, I don’t have any medical record since my medicare is expired.

   So I just sleeping at home to recover.”

6. The Tribunal has considered this response and finds that it does not indicate a valid reason for non-attendance. Whilst the applicant claimed to be feeling unwell, he does not specify the nature of the illness.

7. He has not given a reason for failing to provide a medical certificate other than allowing his Medicare coverage to expire. Maintenance of Medicare coverage is the individual’s responsibility.

8. The applicant did not contact before the hearing or immediately after it to indicate why he could not attend. This further throws into doubt the genuineness of any incapacity he is said to suffer.

9. The Tribunal cannot make a finding based on the evidence provided that the applicant had an illness which prevented him from attending the hearing.

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

    DECISION

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

    Justin Meyer
    Member