1917967 (Refugee)

[2022] AATA 653

1917967 (Refugee) [2022] AATA 653 (11 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917967

COUNTRY OF REFERENCE:                   China

MEMBER:Nathan Goetz

DATE:11 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 11 February 2022 at 4:48pm

CATCHWORDS

REFUGEE – protection visa – China – dismissal decision – failure to attend Tribunal hearing – dismissal confirmed – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 425, 426A, 426B, 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant identifies as [an age]-year-old male citizen of China who arrived in Australia [in] October 2017 holding a visitor visa which was granted on 25 September 2017. The visitor visa ceased [in] January 2018.

2. On 27 November 2017 the applicant applied for a protection visa. On 13 December 2017 the applicant was granted a bridging visa to regularise his migration status in Australia until his protection visa application was finally determined.

3. On 11 April 2019 the applicant failed to attend an interview with the delegate to discuss his claims. On 28 June 2019 the delegate refused to grant the protection visa. On 5 July 2019 the applicant applied to the Tribunal for review of the decision to refuse to grant the protection visa.

4. On 22 October 2021 the Tribunal wrote to the applicant and advised that the Tribunal was not holding in person hearings and was proposing to schedule the applicant’s Tribunal hearing via Microsoft Teams. The letter advised the applicant to contact the Tribunal within seven days if the applicant did not have the appropriate technology or there were any other barriers which would prevent him from participating in the hearing via Microsoft Teams. The Tribunal received no response within the seven-day period.

5. On 11 January 2022 Tribunal staff telephoned the applicant and advised him that the Tribunal hearing had been scheduled, and that it would occur by Microsoft Teams. The applicant told the Tribunal staff that he understood the requirements. The applicant told the Tribunal staff that the applicant’s email address had changed, but the Tribunal staff said that the new email address was not on our records. The Tribunal staff said that the applicant would be sent a ‘change of contact form’ for the applicant to sign and return to the Tribunal. The applicant also asked if he would receive a SMS and the Tribunal staff confirmed that SMS reminders are sent for Tribunal hearings. That same day, the Tribunal staff sent the ‘change of contact form’ to the applicant at the email address the Tribunal had on file and copied that email into the email address the applicant told the Tribunal staff about in the telephone conversation. The applicant did not respond to that email.

6. On 12 January 2022 the applicant was invited under s 425 of the Migration Act 1958 (Cth) (the Act) to appear at a two-hour Tribunal hearing on 27 January 2022 commencing at 10:30am. The hearing was scheduled to occur by Microsoft Teams due to the COVID-19 pandemic. The invitation provided the applicant with the instructions to join the hearing by the Microsoft Teams application by computer or mobile application, or by telephoning a particular phone number. The hearing 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 hearing invitation was sent to the email address that the Tribunal had on its records, as the applicant had not returned a ‘change of contact form’ nominating the new email address.

7. On 17 January 2022 the applicant provided the ‘change of contact form’ changing his email address. The form confirmed the applicant’s mobile telephone number which was provided to the Tribunal when the applicant applied for review of the decision to refuse to grant the protection visa.

8. That same day, the Tribunal wrote to the applicant at the new email address and advised him that Tribunal staff would undertake a test of Microsoft Teams on 19 January 2022 at 2:30pm with the applicant for the purpose of the hearing invitation that the applicant was sent on 12 January 2022 for the hearing on 27 January 2022. The letter detailed what the applicant needed to do for this test, namely following the link in the hearing invitation. The applicant did not participate in the test. Tribunal staff telephoned the applicant twice that day to facilitate the test without success.

9. On 19 January 2022 and 25 January 2022 SMS reminders were sent to the telephone number the applicant had provided to the Tribunal for telephone communication. The records demonstrate that the SMS reminders failed.

10. On 27 January 2022 at 10:30am the applicant did not appear at the Tribunal hearing. Having reviewed the Tribunal file, the Tribunal was satisfied that applicant was properly invited to a hearing in accordance with s 441A(5) of the Act. The letter of 17 January 2022 inviting the applicant to participate in a test of Microsoft Teams also reminded the applicant that the Tribunal hearing was scheduled for 27 January 2022. No satisfactory reason for the non-appearance was been given.

11. In these circumstances, the Tribunal decided to dismiss the application without further consideration of that application or the information before the Tribunal under s 426A(1A)(b) of the Act. The Tribunal waited until the end of the allocated Tribunal hearing before making a decision to dismiss the application to give the applicant time to appear at the Tribunal hearing.

12. 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) of the Act. 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.

13. 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

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

    Nathan Goetz
    Member