1715519 (Refugee)

[2017] AATA 2360

1715519 (Refugee) [2017] AATA 2360 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715519

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Christopher Smolicz

DATE:9 November 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 09 November 2017 at 9:56am

CATCHWORDS
Refugee – Protection visa – Taiwan – No appearance at hearing – Reinstatement request – No medical evidence provided – Case dismissed

LEGISLATION
Migration Act 1958, ss 425, 426A, 426B
Migration Regulations 1994, Schedule 2

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 [in] July 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).

2. On 18 July 2017 the applicant applied to the Tribunal to review the delegate’s decision.

3. On 29 September 2017 the review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 24 October 2017 at 10 am. The invitation stated that if they 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.

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

5. On 24 October 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.

6. 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.

7. On 29 October 2017 the applicant emailed the Tribunal and applied for reinstatement of the application. The applicant stated “I am sick. can you make another appointment for me.” For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

8. On 30 October 2017 the Tribunal wrote to the applicant in response to his email seeking reinstatement. The Tribunal advised the applicant that without medical evidence addressing his non-attendance the Member would dismiss the application. The Tribunal invited the applicant to provide medical evidence.

9. On 6 November 2017 the applicant emailed the Tribunal and stated “i can’t find medical evidence. i want go another haring.”

10. The Tribunal has considered the applicant’s reasons for his non-appearance.  If the applicant requests re-instatement, the Tribunal may either re-instate the application if it considers ‘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.

11. The Tribunal finds the applicant’s submission vague and lacking in detail. The applicant has not provided any information explaining the nature of his sickness and how this has prevented him from appearing at the hearing.  The applicant has not provided any medical evidence as requested by the Tribunal explaining his non-appearance. The applicant has not provided any explanation why he is unable to find medical evidence in support of his submissions.

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

    DECISION

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

    Christopher Smolicz
    Member