1812133 (Refugee)

[2021] AATA 1526

1812133 (Refugee) [2021] AATA 1526 (12 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812133

COUNTRY OF REFERENCE:                   China

MEMBER:Brendan Darcy

DATE:12 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 12 April 2021 at 1:47pm

CATCHWORDS
REFUGEE – protection visa – China – non-appearance before the Tribunal ­– application dismissed – application for reinstatement declined – claimed vehicular breakdown – paucity of documentary evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 426A, 426B
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 decisions made by a delegate of the Minister for Immigration on 16 April 2018 to refuse to grant the visa applicants protection visas under the Migration Act 1958 (the Act).

2. On 15 March 2021, the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3. On 23 March 2021, the applicants were 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 applicants were 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 applicants 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 1 April 2021, the Tribunal received an email from the applicants providing the explanation that they were unable to attend the scheduled hearing for 9.00am on the basis that their vehicle had broken down while en route to the hearing in the central business district of Melbourne from [Suburb 1]. The applicants claimed to be stressed and frustrated and did not know how to contact the Tribunal to inform what had happened. There was no accompanying documentary evidence attached to support this claim.

6. On 6 April 2021, the Tribunal emailed the applicant to provide documentary evidence to support the applicants’ vehicle had broken down on 15 March 2021, as claimed. The Tribunal also requested evidence that the vehicle in question was registered under either of the applicants’ names. A response was expected by 8 April 2021.

7. On 7 April 2021, the Tribunal received an emailed response with a copy of a VicRoads’ registration of a [vehicle] indicating it was registered in the first named applicant, as well as a copy of the first applicant’s [Suburb 1] address. No receipts or other documentary evidence were attached.

8. The emailed response provided more detailed claims about the applicants’ non-appearance. It stated that the vehicle broke down on [a named] Street in [Suburb 2] at 8.15am. They asked the other road users to help and they were very panicked. At about 9.30m, ‘a gentleman helped me to try every way to start car but was not able to start the car’. That same man then successfully recharged the batteries by hooking up the batteries of his car. By that time, it was 10.00am and the applicants realised they had missed the hearing and proceeded to drive home. The applicants further claimed they forgot to ask the name of the man who helped with his car and his phone number. The applicants also claimed that they did not take the car to a car yard (or mechanic) and thus did not have any receipts to provide the Tribunal.

9. The Tribunal notes that at no time after the applicants’ non-appearance at the scheduled hearing on 15 March 2021 did they provide an explanation until a response was prompted by the Tribunal’s notification of its initial decision to dismiss their matter.  It was open to them to phone or otherwise contact the Tribunal when their vehicle had allegedly broken down. It was also open to the applicants to contact the Tribunal on the same day after the scheduled hearing or on the immediate days after their non-appearance on 15 March 2021. When the applicants did provide a response, they did not provide any reasons for not contacting the Tribunal other than experiencing panic arising from their vehicle stopping en route. Had the applicants contacted the Tribunal it would have been in a position to postpone or adjourn the hearing and to have allayed some of the claimed panic the applicants were experiencing. However, they did not call or email from their phones or provide any convincing reasons as for not contacting the Tribunal. The Tribunal is aware the applicants had at least one functioning phone as the Tribunal’s records show text messages to a nominated mobile phone number on the day before the scheduled hearing. Furthermore, the applicants returned home at around 10.00am without contacting the Tribunal, even though the purpose of their travel was to attend a schedule hearing.

10. While the applicants provided a copy of registration of a vehicle, they did not provide any receipt or supporting evidence that their vehicle that had otherwise inexplicably broken down in traffic, or had been repaired or examined by a mechanic in the days after the incident. The implausibility of the claim invites considerable suspicion that that the outlined circumstances on the day of the hearing were not credibly claimed.

11. It is in this context that the Tribunal has considered the applicants’ claims about their untimely vehicular breakdown, which was repaired by recharging batteries with the support of an unnamed individual. It is curious and improbable that that a vehicle breaks down, but it repaired by solely recharging its battery. It is very unlikely that any vehicle would not be able to be travel from [Suburb 1] to [Suburb 2] without a sufficiently charged battery and that the battery would have died in the short amount of time they claimed to have received assistance. Had the battery been the cause of the claimed break down it is highly implausible that such a battery was the cause of the vehicle seizing while in traffic.

12. Furthermore, the Tribunal would expect the applicants to have called an automobile club or service provider or mechanic at the time of the break down or in day or days after the incident. In such circumstances they would have provided some documentary evidence as the claimed reasons for their non-appearance.

13. When assessing the totality of the evidence, with particular emphasis on the implausible written evidence and the paucity of documentary evidence, the Tribunal finds that the applicants have fabricated the reasons for their non-appearance.

14. Accordingly, the Tribunal does not accept the applicants had any reasonable or credible reasons for their non-appearance for a scheduled hearing.

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

    DECISION

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

    Brendan Darcy
    Member