1717942 (Refugee)

[2023] AATA 4531

1717942 (Refugee) [2023] AATA 4531 (31 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717942

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Member Nathan Goetz

DATE:31 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 31 October 2023 at 11:58am

CATCHWORDS
REFUGEE – protection visa – Taiwan – hearing invitation – ‘Email Delivery status notification (failure)’ – non-appearance before the Tribunal – application dismissed – failure to apply for reinstatement – dismissal confirmed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65, 425, 426A, 426B, 441A
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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.

   BACKGROUND

2. The applicant identifies as a [age]-year-old male citizen of Taiwan presently located in Australia.

3. On 8 April 2015 the applicant was offshore and applied for a working holiday visa. On 22 April 2015 the applicant was granted that visa. [In] June 2015 the applicant arrived in Australia holding that visa. On 7 June 2016 that visa ceased.

4. On 30 May 2017 the applicant applied for another working holiday visa. On 28 June 2016 the applicant was granted that visa. On 7 June 2017 that visa ceased.

5. During the currency of that visa, the applicant departed Australia [in] March 2017 and returned [in] April 2017.

6. On 20 April 2017 the applicant applied for the protection visa that is the subject of this decision record. On 20 July 2017 the delegate refused to grant the applicant the protection visa. On 14 August 2017 the applicant applied to the Tribunal for merits review of the decision.

7. In the review application form lodged with the Tribunal, the applicant provided the following details:

   ·     The applicant provided a residential address of [Address 1] and an email address of [Email 1]

   ·     The applicant provided correspondence details of an authorised recipient, [Ms A], being [Address 2], mobile phone number [number] and email address of [Email 1]

8. On 15 August 2023 Tribunal staff wrote to the applicant by email to the authorised recipient and directed that a ‘Pre-hearing information form’ be completed and returned to the Tribunal within 7 days. On 18 August 2023 the Tribunal received a ‘Delivery status notification (failure)’ email which advised that the email account is over quota and inactive. The Tribunal did not receive a completed ‘Pre-hearing information form.’

9. On 26 September 2023 the Tribunal wrote to the applicant by email to the authorised recipient and attached a letter dated 22 September 2023 to invite the applicant under s 425 of the Migration Act 1958 (Cth) (the Act) to appear at a Tribunal hearing scheduled for one hour commencing at 1:30pm on 16 October 2023 at the Melbourne registry. On 22 September 2023 the Tribunal sent a courtesy copy of that hearing invitation by registered post to the applicant’s residential address and the postal address of the authorised recipient for correspondence. The Tribunal did this because it was aware of the likelihood that the email would bounce back given what transpired on 18 August 2023. On 29 September 2023 the Tribunal received a ‘Delivery status notification (failure)’ email which advised that the email account is over quota and inactive.

10. The invitation stated that if the applicant 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.

11. The applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal was satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5) of the Act because the records demonstrate that the hearing invitation was sent by the Tribunal. The fact that the email address to which the hearing invitation was sent was over quota and did not receive the email does not mean that the applicant was not validity invited to appear at a Tribunal hearing.

12. The Tribunal undertook the additional steps of printing and posting the hearing invitation to the applicant’s residential address and the correspondence address of the authorised recipient. The Tribunal also contacted the telephone number of the authorised recipient provided in the review application form on the day of the Tribunal hearing, but the telephone number was disconnected.

13. In these circumstances, on 16 October 2023 the Tribunal decided to dismiss the application under s 426A(1A)(b) of the Act without further consideration of that application or the information before the Tribunal. The Tribunal waited until after the end of the allocated hearing time before dismissing the review.

14. 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) of the Act. The applicant was notified of the decision by email, but the Tribunal undertook the additional steps of printing and posting the dismissal decision to the applicant’s residential address and the correspondence address of the authorised recipient. 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.

15. The applicant did not apply for reinstatement of the application within the 14 days period.

16. As the applicant did not apply to the Tribunal for reinstatement of the review, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.

    DECISION

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

    Nathan Goetz

    
    

    Member