1922187 (Refugee)

[2024] AATA 4258

1922187 (Refugee) [2024] AATA 4258 (8 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Md Sirajul Haque (MARN: 9790005)

CASE NUMBER:  1922187

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Suseela Durvasula

DATE:8 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 08 October 2024 at 2:29pm

CATCHWORDS

REFUGEE – protection visa – Bangladesh – hearing rescheduled after medical evidence provided – physical health – no response to tribunal’s offer of reasonable adjustments – no appearance at hearing and application for review dismissed – application for reinstatement made – no further medical evidence provided – application not reinstated and dismissed confirmed – decision under review affirmed

LEGISLATION

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

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 Home Affairs on 24 July 2019 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. On 18 September 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 applicant applied for reinstatement of the application within 14 days after receiving notice of the decision. In his request for reinstatement, the applicant stated he had been given an opportunity to attend previous hearings scheduled on 20 August 2024 and

   
   

   18 September 2024, but could not attend due to illness. He anticipates that he will face medical tests, examinations and surgery. He is unwell and cannot sit in place for more than 20 minutes at a time. He intends to have a video hearing after 2 months. The applicant did not provide any medical evidence in support of his reinstatement request. He provided a letter dated 3 July 2024 from the Bangladesh Nationalist Party in Australia regarding his protection visa claims.

5. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

6. The applicant has requested reinstatement on the basis that he was unfit to attend the hearing. He claims that he may require surgery and cannot sit in place for more than 20 minutes at a time. The Tribunal finds there is no medical evidence to support this claim. The applicant did not provide any medical evidence with his reinstatement request.

7. The Tribunal has considered the other medical evidence provided by the applicant during the course of the review. On 6 August 2024, the applicant provide a medical certificate signed by his general practitioner on 2 August 2024, requesting a postponement of a hearing scheduled for 20 August 2024. The applicant provided an identically worded certificate on

   
   

   19 August 2024. The certificates stated:

   I have examined [the applicant] today. He is a regular patient of mine & currently in WC for LBP. His pain is also referring to his upper back & neck area with muscle cramps. He is given treatments for that. I hope that his current physical condition will be taken into a considerations [sic] to reschedule his immigration hearing to another suitable date.

8. The Tribunal postponed the hearing on 20 August 2024 and rescheduled it for 18 September 2024. On 16 September 2024, the applicant requested another postponement and provided a medical certificate dated the same day. This had similar wording to the previous certificate and stated:

   This is to certify that [the applicant] is a regular patient of mine. He is currently in WC for LBP. His pain is also referring to his upper back & neck area with muscle cramps. He is given treatments for that. He is also suffering with cold/flu & cough as well as & taking medicine for that. I hope that his current physical condition will be taken into a considerations [sic] to reschedule his immigration hearing to another suitable date.

9. The Tribunal finds the above medical certificates do not contain an adequate explanation or sufficient detail to explain why the applicant could not attend the hearing on 18 September 2024. They do not state that the applicant was unfit to attend and give oral evidence at a hearing. The information in all 3 certificates (dated 2 August 2024, 19 August 2024 and

   
   

   16 September 2024), is vague, general and lacking in detail.

10. The medical certificate of 16 September 2024 does not state that the doctor examined the applicant on that day. The medical certificate states the applicant has physical symptoms of back and neck pain, as well as cold/flu symptoms, but does not explain how these conditions affected the applicant’s ability to give oral evidence at hearing for approximately 3 hours while being seated. The certificates do not state that in the author’s opinion, the applicant is unfit to give oral evidence at a hearing for approximately 3 hours due to a medical condition. The certificates do not support the applicant’s claims that he requires surgery, nor that he cannot sit in place for more than 20 minutes. The certificates suggest that the hearing be postponed to another suitable date, but do not give a prognosis for the applicant’s recovery or indicate when, in the author’s opinion, the applicant would be able to attend a hearing.

11. Further, the applicant was able to send further evidence to his representative, including several photographs and a letter from Bangladesh the evening before the scheduled hearing on 18 September 2024. The Tribunal considers that if he was capable of collating and sending this evidence, he would have been fit to attend a hearing to give evidence.

12. On the evidence before it, the Tribunal is not satisfied that the applicant was unable to attend the hearing on 18 September 2024 to give evidence due to a medical condition. He has not provided any other reason for not attending the hearing. The Tribunal does not accept that the applicant has a reasonable or acceptable excuse for his absence from the hearing.

13. The applicant has also stated that he could attend a video hearing after 2 months. The Tribunal has considered the applicant’s request and whether the matter should be reinstated for this reason. In correspondence to the applicant on 20 August 2024 and 17 September 2024, the Tribunal twice offered to make reasonable adjustments to the hearing to ensure that the applicant’s needs could be accommodated. In these letters, the Tribunal offered to schedule a hearing by video if the applicant was unable to attend in person. The applicant did not respond to this offer of assistance or contact the Tribunal to request any adjustments before the initial dismissal. It was only as part of the reinstatement request that the applicant suggested a video hearing. Given the applicant’s history of requesting hearing postponements and failing to attend, the Tribunal does not accept it would be appropriate to reinstate the matter and postpone the hearing for a further 2 months.

14. The Tribunal has also considered the applicant’s general conduct during the course of the review. Based on this conduct, the Tribunal does not consider it appropriate to reinstate the matter for the following reasons.

15. Firstly, the Tribunal has already postponed the hearing once at the applicant’s request. The hearing scheduled for 20 August 2024 was rescheduled to 18 September 2024 at the applicant’s request. The Tribunal considers that the applicant had sufficient time between the 2 hearing dates – a period of 4 weeks – to either obtain further medical evidence to support another postponement request or to prepare himself for the hearing.

16. Secondly, the Tribunal finds the applicant was on notice that the medical certificates he had provided earlier would not be accepted as sufficient evidence of his inability to attend the hearing, to warrant granting a postponement or to warrant reinstating the matter. The Tribunal wrote to the applicant on 20 August 2024 and 17 September 2024 and clearly explained the reasons why the medical certificate would not be accepted. In both letters, the Tribunal stated:

    The Tribunal notes that the medical certificate you have provided does not state that your medical condition impacts your ability to attend and give evidence at the hearing. It also does not give a prognosis for your recovery or indicate when you will be fit to attend a hearing.

17. The Tribunal finds the applicant had sufficient notice of the deficiencies in his medical certificates and an opportunity to obtain further evidence to support his reinstatement request if he was unfit to attend. Instead, he did not provide any medical evidence in support of his reinstatement request.

18. Having regard to the reasons for the applicant’s failure to appear, the applicant’s conduct during the application for review and other relevant considerations, the Tribunal finds it is not appropriate in the circumstances to reinstate the application.

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

    DECISION

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

    Suseela Durvasula
    Member