1828753 (Refugee)

[2024] AATA 1477

1828753 (Refugee) [2024] AATA 1477 (30 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Hulio Gash (MARN: 1281149)

CASE NUMBER:  1828753

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Frank Russo

DATE:30 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 30 May 2024 at 1:10pm

CATCHWORDS
REFUGEE – protection visa – Tonga – non-appearance before the Tribunal – ‘authorised recipient’ – proper notification of decision – application dismissed – failure to apply for reinstatement – dismissal confirmed – decision under review affirmed

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

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 Home Affairs on 24 September 2018 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. On 14 May 2024 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 Tribunal notes that on 12 March 2024, the applicant’s representative, Mr Gash, advised that as of that day he ceased acting as the representative for the applicant, and he requested that any further communication in relation to the application for review be directed to the applicant personally. Mr Gash provided the last known contact details of the applicant, including an email address and a mobile telephone number.

5. On 13 March 2024, the Tribunal wrote to the applicant to acknowledge that Mr Gash had advised that he would no longer be representing him. The Tribunal advised that unless the applicant completed and returned either an ‘Appointment of Representative / Appointment of Authorised Recipient’ form or a ‘Change of Contact Details’ form, the Tribunal would continue to send correspondence to Mr Gash, who remained the authorised recipient. Copies of the relevant forms to complete were also sent. The Tribunal’s letter was sent to the applicant’s authorised recipient. The Tribunal also sent a courtesy copy to the applicant’s personal email as provided by Mr Gash. No response to this request was received.

6. Section 441G(1)(b) of the Act provides that if the applicant gives the Tribunal written notice of the name and address of another person, defined as the ‘authorised recipient’, who is authorised by the applicant to receive documents in connection with the review, the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Section 441G(2) states that if the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant, however, the Tribunal is not prevented from also giving the applicant a copy of the document. Under s. 441G(3), only the applicant, and not the authorised recipient, can vary or withdraw the notice given under s 441G(1)(b).

7. Therefore, in this case, Mr Gash remains the review applicant’s authorised recipient in connection with the review despite Mr Gash advising that he ceased to act for the review applicant on 12 March 2024. This is because the review applicant has not varied or withdrawn his appointment of Mr Gash as his authorised recipient.

8. Accordingly, the Tribunal is satisfied that the applicant was properly notified of the dismissal decision in accordance with s 426B(5) of the Act, as the notice was sent to the applicant’s authorised representative. Courtesy copies of the notice of dismissal decision were also sent to the personal email address of the applicant, as provided by Mr Gash, and to the last known postal address of the applicant. The Tribunal has not received a request for reinstatement.

9. As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.

   DECISION

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

    Frank Russo
    Member