2005745 (Refugee)

[2024] AATA 983

2005745 (Refugee) [2024] AATA 983 (26 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2005745

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Member Nathan Goetz

DATE:26 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 26 February 2024 at 9:07am

CATCHWORDS
REFUGEE – protection visa – Malaysia – non-appearance before the Tribunal – application dismissed – failure to apply for reinstatement – dismissal confirmed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 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 dependant.

STATEMENT OF REASONS AND DECISION

APPLICATION FOR REVIEW

1. This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.

   BACKGROUND

2. The applicant identifies as a male citizen of Malaysia presently located in Australia.

3. On 27 May 2017 the applicant was offshore and was granted an electronic travel authority visa to travel to Australia. [In] June 2017 the applicant arrived in Australia holding this visa which was valid [until] September 2017.

4. On 14 October 2019 the applicant applied for the protection visa. On 25 February 2020 the delegate refused to grant the protection visa. On 22 March 2020 the applicant applied to the Tribunal for review of the decision.

5. On 28 November 2023 the Tribunal wrote to the applicant and advised that the review would soon be constituted to a Member. The applicant was directed to complete and return a ‘Pre-hearing information form’ within 7 days. The applicant did not do so.

6. On 10 January 2024 the Tribunal wrote to the applicant under s 425 of the Act and invited the applicant to appear at a three-hour Tribunal hearing commencing at 9:30am on 9 February 2024. The invitation stated that if the applicant did not attend the Tribunal hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The applicant was directed to complete and return a ‘Response to hearing invitation form’ within 7 days. The applicant did not do so.

7. The Tribunal also undertook the additional steps of sending SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. However, the evidence is that delivery of those messages failed.

8. The applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal telephoned the applicant on the day of the Tribunal hearing, but the call was unsuccessful. No explanation was provided about why the applicant failed to appear at the Tribunal hearing.

9. The Tribunal was satisfied that applicant was properly invited to a hearing in accordance with s 441A(5) of the Act. There is no evidence that the invitation failed to send. The Tribunal sent SMS reminders and made a telephone call to the applicant to encourage his attendance at the Tribunal hearing. The Tribunal has done what it is required to do and more to get the applicant to appear at a Tribunal hearing.

10. In these circumstances, the Tribunal decided on 9 February 2024 to dismiss the application without further consideration of that application or the information before the Tribunal. Under s 426A(1A)(b) of the Act.

11. 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.

12. The applicant did not apply for reinstatement within the 14-day period.

    CONSIDERATION

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