1924687 (Refugee)

[2022] AATA 5056

1924687 (Refugee) [2022] AATA 5056 (27 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1924687

COUNTRY OF REFERENCE:                   China

MEMBER:Nathan Goetz

DATE:27 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 27 January 2022 at 5:18pm

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

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 425(1), 426A(1A)(b), 426B(5), 441A(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 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. The applicant identifies as a [Age]-year-old female citizen of China presently located in Australia. She arrived in Australia [in] May 2015 holding a visitor visa that had been granted on 11 May 2015. The visitor visa ceased on 30 May 2015 and the applicant became an unlawful non-citizen.

3. On 8 June 2019 the applicant applied for a protection visa. On 14 June 2019 she was granted a bridging visa to regularise her migration status while her protection visa application was considered. The delegate did not invite the applicant to attend an interview to discuss her claims. On 3 September 2019 the delegate refused to grant the protection visa on the basis that the applicant did not satisfy s 36(2)(a), (aa), (b) or (c) of the Act.

4. On 3 September 2019 the applicant applied to the Tribunal to review the decision to refuse to grant the protection visa. On 10 June 2020 the bridging visa that had been previously granted expired and on the same date the applicant was granted another bridging visa which remains in effect to date.

5. On 10 December 2021 the Tribunal wrote to the applicant under s 425(1) of the Act and invited the applicant to appear at a three-hour Tribunal hearing commencing at 10:00am on 10 January 2021. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because it had considered the material it had and was unable to make a decision favourable to the applicant. The Tribunal was satisfied that a telephone hearing was appropriate given the COVID-19 pandemic. Included in the hearing invitation was a ‘Response to hearing invitation form’ that the applicant was directed to complete and return to the Tribunal within 7 days. The Tribunal never received a completed ‘Response to hearing invitation form.’

6. On 10 January 2021 the Tribunal called the applicant on the telephone number the applicant provided in a ‘Change of contact information form’ that the Tribunal received on 4 January 2021. The Tribunal called the applicant three times. All calls were unsuccessful.

7. The review applicant was invited under s 425 of the Migration Act 1958 (Cth) (the Act) to appear at the Tribunal. 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 Tribunal also sent an SMS reminder to the applicant’s new contact number about the hearing one business day before the scheduled hearing.

8. As the applicant did not answer the Tribunal’s calls, the applicant did not appear at the Tribunal hearing. Having reviewed the Tribunal file, the Tribunal was satisfied that the applicant was properly invited to a hearing in accordance s 441A(5) of the Act. There is no evidence that the hearing invitation failed to send. There was no evidence that the SMS reminder sent to the applicant’s new mobile number failed to send. That day, 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. The Tribunal waited until the end of the allocated hearing time before making its decision.

9. 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.

10. 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

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

    Nathan Goetz
    Member