1817082 (Refugee)

[2018] AATA 4605

1817082 (Refugee) [2018] AATA 4605 (11 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1817082

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Christopher Smolicz

DATE:11 October 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 11 October 2018 at 2:16pm

CATCHWORDS
REFUGEE – Protection visa – Taiwan – reinstatement of application – non-appearance at hearing – authenticity of medical certificate – decision under review dismissed

LEGISLATION
Migration Act 1958 (Cth), ss 326B, 426A, 426B

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 on 25 May 2018 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).

2. On 6 September 2018 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. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

5. On 20 September 2018 the applicant sent a letter to the Tribunal providing an explanation as why he could not attend the hearing. The applicant stated that that on 5 September 2018 he suffered diarrhoea and vomiting due to contaminated food he had consumed. He went to see a doctor and was told to rest and drink water. He was unable to attend the hearing on 6 September 2018 due to his medical condition. In support of his claim the applicant provided the Tribunal with a copy of a medical certificate.

6. The Tribunal examined the certificate and has concerns about its authenticity. The certificate was unsigned and the name of the medical clinic was spelt incorrectly. The Tribunal contacted the medical clinic named on the certificate to verify the authenticity of the certificate. The medical clinic contacted the Tribunal and confirmed that they did not issue the medical certificate.

   Consideration of evidence and submissions

7. If an 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.

8. The Tribunal has considered the applicant’s submissions and evidence as why he did not attend the Tribunal hearing. The Tribunal finds the medical certificate provided by the applicant is not genuine. The Tribunal is concerned that the applicant has provided a false document justifying his non-attendance at the hearing. As a consequence the Tribunal does not find the applicant to be credible and does not accept that he could not attend the hearing because of a medical condition.

9. The Tribunal accepts that from time to time applicants can unexpectedly become unwell and not be able to attend a hearing due to medical reasons. The Tribunal finds that in such circumstances it is appropriate for the applicant to provide credible evidence to explain the non-appearance. The Tribunal has considered the evidence provided by the applicant explaining his non-appearance and in all the circumstances does not find it credible.

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

    DECISION

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

    Christopher Smolicz
    Member