Aslam (Migration)

[2021] AATA 1175

Aslam (Migration) [2021] AATA 1175 (31 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adnan Aslam

CASE NUMBER:  1933658

DIBP REFERENCE(S):  BCC2019/4343421

MEMBER:Peter Booth

DATE:31 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 31 March 2021 at 8:22am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-appearance before the Tribunal – application dismissed – request for reinstatement of application declined – employment commitment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 362B, 362C, 368

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 Immigration on 7 November 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. On 15 March 2021 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3. The review 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.362C(5). The review 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 review applicant applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

5. On 27 November 2019 the applicant filed an application for review with the Tribunal in respect of a decision to refuse his application for a student visa.

6. By email dated 18 December 2020 the applicant was invited to attend the hearing of his application scheduled to take place on 10 February 2021.

7. By email dated 1 February 2021 the applicant requested an adjournment of the hearing as follows:

   Hi !

   Thanks for your email.

   I’ve read the details about the hearing and the time.

   I’ll have to request to change the date of the hearing as I’m not available on this date because of my work commitments. Is it possible to please get any date after 28th of February.

   I can get my work roster or verification of not being available on Wednesday next week from my work place if needed.

8. On 12 February 2021 the applicant was invited to attend the hearing of his application scheduled to take place on 1 March 2021.

9. The applicant did not appear at the hearing on 1 March 2021. Tribunal staff attempted to contact the applicant by telephone using the mobile telephone number which he had provided between 1:15 pm and 1:50 pm. The applicant did not answer the telephone calls.

10. On 15 March 2021 the Tribunal dismissed the application pursuant to s.362B(1A)(b) of the Act. By letter dated 15 March 2021 the applicant was informed of the decision. Among other things the letter stated as follows:

    A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.

    You may apply to us, in writing, for reinstatement of the application by 29 March 2021. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.

11. By email dated 29 March 2021 (10:53 pm) the applicant requested reinstatement of his application for review as follows:

    Hi !

    This is an email to explain why I couldn’t attend the hearing last time. I was very well aware of my hearing date but because of my work in hospitality and the uncertainty of work I was called in for work on that day and even though I tried to explain but I was told that I’ll be able to finish my work before hearing time which I couldn’t unfortunately. I can provide further details for work on that day if needed Can I please get a new hearing date as it is extremely important for me I will appear for the hearing whichever date it is.

    If you need any further information please do Letme know.

    Adnan Aslam

12. If an applicant fails to appear at the scheduled hearing time and date, the Tribunal may dismiss the application without considering it further. However, it is not obliged to dismiss the application and may make a decision on the merits and give its decisions and reasons pursuant to s.368 or s.430. If the Tribunal does dismiss the application, it must make a statement under s.362C or s.426B that records the decision, the reasons for the decision, and the time and date of the decision.[1]

    [1] Sections 362C(2) and 426B(2).

13. Further, the Tribunal must notify the applicant of the dismissal decision within 14 days by giving a copy of the s.362C or s.426B statement and a notice advising that the applicant may apply for reinstatement with 14 days of receiving the dismissal statement, the courses of action the Tribunal may take, and the consequences of not applying for reinstatement.[2]

    [2] Sections 362C(5)–(6) and 426B(5)–(6).

14. The applicant may, within 14 days of receiving the dismissal statement, request that the application be reinstated.[3]

    [3] Sections 362B(1B) and 426A(1B).

15. The Act does not provide that the request for reinstatement be in a particular form or have particular content. What constitutes a request for reinstatement will depend on the circumstances of the matter. The request must be made within 14 days after receiving the notification of the initial dismissal.

16. If the applicant requests reinstatement, the Tribunal may either reinstate the application if it considers it is ‘appropriate to do so’ or confirm the dismissal.[4] What is relevant to this determination depends upon the particular circumstances of the case, but includes having regard to reasons given by the applicant, whether the applicant actually received the hearing invite, and the history of the applicant’s participation in the review.[5]

    [4] Sections 362B(1C) and 426A(1C).

    [5] See, for example, Li v MIBP [2017] FCCA 2326 at [36]–[38] in which the Court held that it was reasonable for the Tribunal to not reinstate an application where the applicant was correctly invited to a hearing, the Tribunal attempted to contact the applicant by phone prior to the hearing (as the hearing invitations were not successfully delivered), and medical evidence provided by the applicant after the hearing was insufficient to support a claim that the applicant was too ill to attend. The medical evidence was a referral for a pathology test which was dated five days after the hearing and did not specify what condition he was suffering from on the date of the hearing or indicate that he was incapacitated on that day. See also Singh v MIBP [2018] FCCA 1361 at [11] and [15], upheld in Singh v MIBP [2018] FCA 1927 and application for special leave to appeal refused in Singh v MIBP [2019] HCASL 65. The Court found that it was open to the Tribunal to reject an application for reinstatement on the basis that the medical certificate provided by the applicant did not sufficiently explain the applicant’s failure to appear at the hearing. See also CNU16 v MIBP [2018] FCCA 864 at [26]–[27], upheld in CNU16 v MHA [2018] FCA 1662 and application for special leave to appeal refused in CNU16 v MIBP [2019] HCASL 56. The Court upheld the Tribunal’s confirmation of dismissal decision, finding the decision was made reasonably as it had regard to and set out each element of the explanation provided by the applicant in relation to his non-appearance, set out the steps the Tribunal took to allow the applicant to appear, and gave reasons for doubting the applicant’s account of events. Further, the Tribunal gave reasons as to why it had decided not to exercise its discretion to reinstate.

17. In this matter the applicant was given notice of the hearing well in advance. He was sent SMS reminders prior to the hearing date. He did not contact the Tribunal prior to the hearing to request an adjournment as he had done in respect of the previous hearing invitation. It is likely that the applicant was aware of his employment commitments and roster prior to the hearing. However, he did not contact the Tribunal prior to the hearing to request an adjournment on that basis. He was telephoned by Tribunal staff on three occasions between 1:15 pm and 1:50 pm on the day of the hearing. No response was received. He did not appear at the hearing and did not contact the Tribunal until 29 March 2021, at 10:53 pm, to request a reinstatement. He waited until almost the expiry of the 14-day period to request such a reinstatement. He has not explained why the request for reinstatement was not made earlier. At no stage did the applicant contend that he was unaware of the hearing date or that he did not receive the SMS reminders for the three telephone calls on 1 March 2021. Indeed in the application for reinstatement he admits that he was “very well aware of my hearing date”. He does not state that he attempted to contact the Tribunal, when he was requested to attend his employment, why he did not respond to telephone calls, why he did not contact the Tribunal subsequent to the hearing, why he waited until 10:53 pm on the last day to request a reinstatement. Further the applicant has provided no evidence to corroborate the reason why he could not attend the hearing on the scheduled date and time. The applicant has had ample opportunity to consider his position and provide evidence to support his application for reinstatement. The Tribunal is not satisfied that it is appropriate to reinstate the application based on the available evidence and declines to do so.

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

    DECISION

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

    Peter Booth
    Member