Anil Kumar (Migration)

[2020] AATA 4194

Anil Kumar (Migration) [2020] AATA 4194 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Anil Kumar Anil Kumar
Mrs Pinki Devi Pinki Devi
Master Kian Sagwal

CASE NUMBER:  1923379

DIBP REFERENCE(S):  BCC2018/203834

MEMBER:Karen McNamara

DATE:16 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 16 September 2020 at 11:27am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – request for postponement of hearing refused – no appearance at hearing – application dismissed – application for reinstatement refused – medical conditions and treatment not notified at time of request for postponement or hearing – dismissal confirmed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 362B, 362C, 425

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 12 August 2019 to refuse to grant the visa applicants Employer Nomination (Permanent) Subclass 186 visas under the Migration Act 1958 (the Act).

2. On 27 August 2020 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3. The review applicants were 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.362C(5). The review applicants were 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 review applicants applied for reinstatement of the application within 14 days after receiving notice of the decision. The Tribunal has given careful consideration to this request for reinstatement and for the following reasons, the Tribunal does not consider it appropriate to reinstate the application.

5. On the 15 September 2020, the Tribunal received an email dated 14 September 2020 from the first named applicant Mr Anil Kumar (referred to below as the applicant).The email stated as follows;

   “ Please request for one more change as you know I am not being well for last couple of months. I m see doctor every weeks as medical certificate provided even that day I had helicopter pylori test on same time.so i wasn’t able to make it to hearing, and ruby don’t want to come without me and she Alonso being thorough lot stress in her life domestic problem.lot off thinks happening in life We wasn’t mentally ready for this hearing Thats why before the hearing I requested to you please request for another time.

   Please I need one more chance as you know I come to Australia in 2009 it’s being more then 10 years many attempts to Australian permanent residency still not achieving I don’t know it’s my fault or business owner fault after worked hard for the company end of the day I got my case refused After that I am not being well lot of mental stress of high blood pressure and-it’s effective My life very badly and family’s life my wife under stress because of me and my little one getting effective to with us.
   I don’t even know if I have to go back to my country after 10 year in Australia how I m going to survive there my little one never being to my country.

   Please request for one more chance
   Please for my family.
   Kind regards
   Anil kumar
   0413522022 ”

6. The email included an Imaging Request (undated), a Medical certificate dated post hearing 28 August 2020 advising that the applicant had undergone regular follow ups since 19/8/20 till 28/8/20 inclusive (presented three times) and was unfit to travel. A prescription dated 26 August 2020 for anti-fungal medication Lamisil cream and Terbinafine tablets was also provided to the Tribunal. 

7. The Tribunal notes that on the 17 August 2020, the Tribunal received a request from the applicant’s authorised representative seeking a postponement of the hearing scheduled for 27 August 2020. The Tribunal subsequently refused the applicants request and advised the applicants authorised representative on 18 August 2020 inter alia that the Tribunal would not delay the matter and that the hearing would proceed at the scheduled time of 10.30 am on 27 August 2020 via Microsoft Team Audio.

8. On 26 August 2020, the authorised representative contacted the Tribunal via telephone and advised that he had made the applicants aware of the hearing on 27 August 2020, however they had not replied to him.

9. The Tribunal has considered the applicant’s email and attached medical documentation including the medical certificate dated 28 August 2020 and notes the medical certificate is dated post hearing. The Tribunal makes the observation that the medical certificate states the applicant had undergone regular follow ups since 19 August 2020. This is a day after the Tribunal notification to the applicant on 18 August 2020, that the hearing would proceed at the scheduled time and date. There is no information before the Tribunal to support that the applicants attempted to advise the Tribunal that they could not attend the scheduled hearing of 27 August 2020. The Tribunal notes that the telephone number provided by the applicant in his email dated 14 September 2020 is the same number the Tribunal attempted to contact the applicant on the day and time of the scheduled hearing that being on three separate occasions 10.30am, 10:45am and 11:00 am on 27 August 2020. On all three occasions the call proceeded directly to a voicemail message.

10. The Tribunal considers that the submission provided by the applicant does not address the failure by the applicants to attend the hearing and as such the Tribunal considers that they have not provided a satisfactory reason for their nonattendance at the scheduled hearing via telephone on 27 August 2020.

11. The Tribunal finds that the applicants were properly invited to the hearing under s.425 of the Migration Act 1958 and have not provided a satisfactory reason to the Tribunal for failing to attend the hearing of 27 August 2020.

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

    DECISION

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

    Karen McNamara
    Member