Biba (Migration)

[2020] AATA 619

Biba (Migration) [2020] AATA 619 (26 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Diego Biba

CASE NUMBER:  1904381

DIBP REFERENCE(S):  CLF2014/95477

MEMBER:Justin Meyer

DATE:26 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 26 February 2020 at 3:15pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – genuine relationship – did not appear at hearing – medical certificate provided – lack of supporting documents – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 362B

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 14 February 2019 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2. On 21 January 2020 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. The applicant’s representative (a firm of solicitors) wrote to the Tribunal on 4 February 2020 in these terms:

   We act on behalf of Mr Diego Biba in his application for review.

   …

   The applicant was invited to attend a hearing at the Tribunal on 21 January 2020. Unfortunately, due to health reasons the applicant was unable to attend the hearing and the hearing was subsequently dismissed. Please find attached a signed statutory declaration and medical certificate confirming the same. We will provide further supporting documents once they become available.

   The applicant instructs that he is still in a genuine and continuing relationship with the sponsor and request [sic] that the Tribunal reinstate his review application to allow him the chance to provide the relevant evidence and submissions in support of his review application for a partner visa refusal.

6. A statutory declaration made by the applicant dated 4 February 2020 was enclosed which stated: 

   I am an applicant for a review of a Subclass 820 Partner Visa refusal at the Administrative Appeals Tribunal (Case Ref: 1904381)

   I was invited to attend a hearing at the Tribunal on 21 January 2020.

   On the morning of 21 January 2020, I woke up to extreme back pain and was unable to physically move or leave my bed.

   A few hours later, I was able to finally move and contacted my migration agents immediately.

   Unfortunately, my AAT matter was dismissed as I was unable to attend the hearing.

   I confirm that I am still in a genuine and ongoing relationship with my wife, the sponsor.

   I sincerely ask that the Tribunal reinstate my AAT review application as I was unable to attend the hearing due to a medical condition.

7. The doctor’s medical certificate that was enclosed reads as follows:

   This is to certify that Mr Diego Biba is receiving medical treatment for the period Tuesday 21 January 2020 to Tuesday 21 January 2020.

   Mr Diego Biba will be unfit to continue his usual occupation during this period.

   This certificate was completed on 21 January 2020

8. The Tribunal has given consideration to these statements and has decided to make a final dismissal of the matter.

9. The applicant has written of back pain so debilitating that it prevented him from leaving his bed for a few hours on the day of the hearing. The Tribunal notes however that back pain can on some occasions be a possible symptom of an illness, disability or condition, but that these are not mentioned in the medical certificate.

10. The medical certificate is a ‘bare’ certificate which neither mentions symptoms nor an illness/ disease / condition. The certificate also states that the applicant was unable to attend work, but does not specify that he was unable to attend a Tribunal hearing either in person or by telephone.

11. The Tribunal is therefore unable to find on this evidence that the applicant was prevented from participating in the hearing, and concludes that he has not shown that he had a valid reason for his non-attendance.

12. The Tribunal further notes that the representative wrote on 4 February 2020 that: “We will provide further supporting documents once they become available.” Three weeks has passed since making that statement, but no further supporting documents have been sent to the Tribunal.  One of the statutory principles of the Tribunal is to provide administrative review that is accessible, fair, just, economical, informal and quick. Given the considerable opportunity to make further submissions which was not taken up the Tribunal needs to act expeditiously and proceed to a decision.  

13. The Tribunal also notes that the applicant wrote in his request for reinstatement that he confirms that he still in a genuine and ongoing relationship with his wife, the sponsor. The Tribunal observes that in the entire period since lodging his application for review the applicant has made no substantive submission whatsoever. In the invitation to attend a hearing, dated 2 December 2019, the applicant was given one and a half month’s notice that there would be a hearing and that written submissions for this hearing were due 14 days before the hearing. No documents were forwarded in this regard. Therefore the Tribunal has virtually no evidence on the relationship since the decision of the delegate some twelve months ago (14 February 2019).  This situation offers no reinforcement of the applicant’s claim about his relationship, and it does not advance any claim of a heightened need to reinstate the matter.

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

    DECISION

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

    Justin Meyer
    Member