1712147 (Refugee)

[2022] AATA 5135

1712147 (Refugee) [2022] AATA 5135 (2 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712147

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Simone Burford

DATE:2 February 2022

PLACE OF DECISION:  Perth

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

Statement made on 02 February 2022 at 10:58am

CATCHWORDS

REFUGEE – Protection visa – Malaysia – applicant failed to attend tribunal hearing – unsatisfactory explanation for non-attendance – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 424, 426A(1A)(b), 426B(5)

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 19 May 2017 to refuse to grant the review applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. On 14 January 2022 the Tribunal dismissed the application under s 426A(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3. An noted in the initial dismissal decision, when the review applicant failed to appear, the Tribunal attempted to contact the applicant on the mobile number in their review application.  The call was answered by the review applicant who stated they could not understand and would call back with a person who could interpret for them.  The Tribunal received an in-bound call from a person confirmed to be the review applicant’s co-worker and friend.  The review applicant gave consent for the caller to interpret on their behalf.  The Tribunal Officer explained that the review applicant had been sent the s 424(2) invitation and hearing invitation via email. The review applicant confirmed that her email address was consistent with that on Tribunal records but stated she did not regularly check her email. The review applicant stated that an agent had initially assisted her with the review application, but that they were no longer providing that assistance.  The Tribunal notes Tribunal records for the application do not record an authorised recipient or representative for the case.

4. The Tribunal considered the review applicant’s explanation and the circumstances of the application however, as indicated in the initial dismissal decision, the Tribunal considered that no satisfactory reason for the non-appearance had been given.

5. The review 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 review 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 review applicant sent an email to the Tribunal dated 20 January 2022 to apologise for their non-attendance at the hearing on 14 January 2022.  The email stated:

   Thank you very much for your getting in touch with phone call and email. I am very sorry for failing appearing the scheduled hearing time.

   My English is not very good. I can speak very limited English but with very bad reading and writing comprehension. I don't check my email often as I can not understand english mostly and not familiar with internet stuff. Failing appearing is not what intended to do.

   Hope you accept my sincere apology for not responding your email soon enough and failed appearing the hearing time.

   Above information is all truth and has been translated from my oral statement in Chinese by a friend.

7. The email did not include any other explanation for their failure to respond to the invitation letter or to attend the Tribunal hearing.  The Tribunal notes that the invitation to the hearing had been issued at the Tribunal’s discretion following the review applicant’s failure to respond to an invitation issued on 6 December 2021 pursuant to s 424(2) of the Act inviting them to provide information in relation to their application for review.

8. In response to the review applicant’s email, the Tribunal wrote to the review applicant on 20 January 2022 inviting them to submit any further information in support of a request to reinstate the application for review by the expiry date for the reinstatement request which was 28 January 2022.  No further submissions were received from the review applicant.

9. The Tribunal has considered all the circumstances of the application and the review applicant’s explanation for non-attendance. While the Tribunal acknowledges the review applicant was apologetic for not attending the hearing, the Tribunal does not regard the review applicant’s explanation that she does not check her emails and does not have good English skills to be a satisfactory explanation for her non-attendance before the Tribunal. 

10. The Tribunal considers that reasonable notice of the hearing was provided to the review applicant to her nominated email address for correspondence. This followed an earlier invitation to provide information to which the review applicant did not respond.  The review applicant was also sent two SMS reminder messages to her nominated mobile number reminding her of the hearing date, encouraging her to check the hearing invitation and providing a telephone number to call if she had any questions.

11. The review applicant bears a responsibility for managing her own affairs and for checking correspondence at her nominated address.  That she did not do so on this occasion is not, in the Tribunal’s view, a satisfactory explanation for non-attendance at a hearing on her application for review of her protection visa application.

12. Having considered all the circumstances of the application the Tribunal considers that the initial decision to dismiss the application should be confirmed.

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

    DECISION

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

    Simone Burford
    Member