1829234 (Refugee)

[2020] AATA 4983

1829234 (Refugee) [2020] AATA 4983 (6 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1829234

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jason Pennell

DATE:6 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 6 November 2020 at 11.06am

CATCHWORDS

REFUGEE – protection visa – Malaysia – no appearance at review hearing – application for review dismissed – application for reinstatement made – no appearance at reinstatement hearing – dismissal confirmed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 426(1A)(b), 426B(5)

Migration Regulations 1994

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 Immigration on 26 September 2018 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).

2. On 22 October 2020 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. On 28 October 2020, within the 14 days of having received notice of the decision the applicant made a request for reinstatement of the application. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

5. On 28 September 2020 the Tribunal sent an invitation to the applicant to attend the hearing listed for 22 October 2020 at 12.00pm to give evidence and present arguments relating to the issues arising in his case. Due to the Covid-19 pandemic the Tribunal exercised its discretion to hold the hearing by telephone having determined it was reasonable to do so having regard to the nature of the applicant’s claim and the individual circumstances of the applicant. In exercising its discretion to hold the hearing by telephone the Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick and to the delay to the applicant in having the matter determined if it was not to be conducted by telephone.

6. The hearing invitation stated that the applicant should arrange to be available for up to three (3) hours and to arrange to be in a private place where she would not be interrupted and cannot be overheard. In addition, the invitation advised the applicant that if she was not able to participate in the hearing, she needed to advise the Tribunal as soon as possible. It noted that the Tribunal will only make changes if satisfied that the applicant has good reason for being granted an adjournment of the hearing.

7. Finally, the hearing invitation advised the applicant that if she did not participate in the scheduled hearing the Tribunal may decide the matter without taking any further action to allow or enable her to appear before it or dismiss her application for review without any further consideration of the application.

8. By a letter dated 30 September 2020 the applicant requested an adjournment of the hearing listed for 22 October 2020 claiming that she would not have all information available for the purposes of conducting the hearing and that she was required to work at the time of the hearing. 

9. By a letter dated 6 October 2020 the Tribunal advised that it had considered the applicants request for an adjournment and advised that the hearing was to proceed as scheduled. It explained to the applicant that  despite claiming that she did not have all the information necessary to conduct the hearing  he had not provided any detail as to what information she intended to rely at the hearing and what information needed to obtain for the purposes of conducting the hearing.  The Tribunal informed the applicant that if the she wanted to present any further information or documentation to the Tribunal, either at the hearing or after the hearing in support of her claim, she could make application to do so at the time of the hearing.

10. By an email dated 6 October 2020 the applicant acknowledged the Tribunal’s letter dated 6 October 2020 advising that the hearing would proceed on 22 October 2020 as scheduled.  In her response to the Tribunal the applicant thanked the Tribunal for its timely response stating it ‘helps us keep the project on schedule.’  The applicant did not appear at the hearing listed on 22 October 2020 and the Tribunal dismissed the applicant’s claim.

11. The applicant’s claims in her request for reinstatement dated 28 October 2020 that she had not realised that her co-operation and presence at the hearing was essential for the application to proceed. Having considered the correspondence forwarded to the applicant by the Tribunal, the Tribunal does not accept that the applicant was not aware that her co-operation and presence was required at the hearing. Despite the Tribunal’s letter dated 6 October 2020 advising the applicant that the hearing was to proceed on 22 October 2020 and her acknowledgement of having received the letter, the applicant did not appear at the hearing and did not provide any reasonable excuse as to why she was not able to attend the hearing for the purposes of proving evidence and making submissions.

12. As a result, the decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.

DECISION

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

Jason Pennell
Senior Member