1802120 (Refugee)

[2023] AATA 4785

1802120 (Refugee) [2023] AATA 4785 (11 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802120

COUNTRY OF REFERENCE:                   China

MEMBER:David McCulloch

DATE:11 December 2023

PLACE OF DECISION:  Sydney

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

Statement made on 11 December 2023 at 7:40am

CATCHWORDS
REFUGEE – protection visa – China – no appearance at hearing – application for review dismissed – application for reinstatement made – applicant afraid to open hearing notice email and nervous to answer phone calls – all reasonable steps taken to notify applicant of hearing and not appropriate to reinstate – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 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 dependants.

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 Home Affairs on 8 January 2018 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. On 28 November 2023 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. The applicant responded as follows:

   I have received an email in regards to a Notification of Decision to Dismiss the Application on the 28 November 2023.

   I apologise for the failure to attend the hearing scheduled by the Tribunal on the 28 November 2023. I would ask the Tribunal to take into consideration to reinstatement application for another Hearing upon the request by the Tribunal.
   Thank you for giving me another opportunity to repones by the 12 December 2023.

   The email that the Hearing notice was sent to me but I was too afraid to open it, because I do not know much English. I was nervous to pick up any incoming calls to my phone which are not in my contacts. There were many scams text messages and emails. That is why I did not know and did not expect the Hearing. I apologise for this; I will seek for help with any emails that comes from the Tribunal in the future.

   I understand what the need is now, and would like to ask for another chance for a Hearing. I will make sure that for the next time, there is someone who can help me with this process.

   This is a compelling and compassionate circumstances and wish the Registrar from the Tribunal will schedule for a Hearing

5. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

6. The Tribunal does not accept in all the circumstances of the Tribunal’s communications with the applicant that he did not become aware of the Tribunal hearing before it took place. It is not plausible that the applicant would have been afraid to have opened email correspondence from the Tribunal in circumstances where he had a review application with the Tribunal in place. The Tribunal also notes that two SMS reminders of the hearing were sent to the applicant at his mobile phone number five days and one day before the scheduled hearing.

7. An indication that the applicant has not seriously sought to prosecute and explain ­claims for protection is suggested by the fact that the applicant did not attend the interview with the delegate to which he was duly invited.

8. The Tribunal considers that it had taken all reasonable steps to notify the applicant of the hearing.

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

   DECISION

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

    David McCulloch
    Member