1821043 (Refugee)

[2020] AATA 4462

1821043 (Refugee) [2020] AATA 4462 (1 July 2020)

NON-APPEARANCE DECISION

DIVISION:Migration & Refugee Division

CASE NUMBER:  1821043

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Deputy President Jan Redfern

DATE:1 July 2020

PLACE OF DECISION:  Melbourne

DECISION:Application dismissed under s.426A(1A)(b) of the Migration Act 1958.

CATCHWORDS
REFUGEE – protection visa – Malaysia – non-appearance before the Tribunal – proper hearing invitation – application dismissed

LEGISLATION
Migration Act 1958 (Cth), ss 425, 426A, 441A

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.

1. The review applicant lodged an application for review on 20 July 2018 and nominated his email address and telephone number in the application. The Tribunal has not been notified of any changes.

2. By letter dated 5 June 2020 the review applicant was invited under s.425 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal by telephone on 1 July 2020 at 10:00am. 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. The letter advised the applicant of the telephone number the Tribunal would contact him on at the scheduled hearing time and requested the applicant to advise the Tribunal if the telephone number was not correct or if they would prefer to be contacted on a different telephone number. The letter was sent to the email address nominated by the applicant.

3. The applicant emailed the Tribunal a completed hearing response form on 21 June 2020, confirming his attendance. In answer to the question about whether the applicant would experience any difficulty in participating in the hearing by telephone, the applicant responded “No”.

4. The Tribunal sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. The first SMS failed to be delivered to the review applicants nominated telephone number. I am advised, and there is a file note to this effect, that an officer of the Tribunal attempted to call the review applicant on 30 June 2020 and the call was unanswered.

5. On the day of the scheduled hearing the review applicant was contacted by an officer of the Tribunal at 9:49am, the call was unanswered, and the review applicant was called again at 9:58am. The hearing commenced at approximately 10.05am with the assistance of an interpreter in the Malay language and I caused the review applicant to be again contacted on the nominated mobile number at 10:06am. The call was unanswered, and I adjourned the matter until 10:20am. The hearing recommenced at 10:21am. The review applicant was telephoned on the number nominated at 10:22am and the call was unanswered.

6. Accordingly, it is self-evident that the review applicant did not appear by telephone before the Tribunal on the day and at the scheduled time.

7. Having reviewed the Tribunal file, I am satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) of the Act and that the applicant received the hearing invitation because he responded to the invitation by email on 21 June 2020. Even though it appears that one of the SMS reminders sent to the review applicant about the hearing failed, I am satisfied that the applicant was aware of the hearing and the scheduled time for the hearing. I have made enquiries and there is no record of the applicant contacting the Tribunal to advise of any difficulties with his telephone or contact details prior to the hearing. As such, I am not aware of any satisfactory reason as to why the applicant did not participate in the hearing.

8. In these circumstances, I have decided to dismiss the application without further consideration of that application or the information before the Tribunal. I note that the applicant may seek reinstatement of the application for review within 14 days of being notified of this dismissal. If I consider it appropriate to do so, for instance if the applicant provides a satisfactory explanation as to why he could not participate in the hearing, I may reinstate the application.

   Statement made on 1 July 2020 at 4:16 PM