BISTA (Migration)

[2020] AATA 1265

BISTA (Migration) [2020] AATA 1265 (6 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kushal BISTA

CASE NUMBER:  1819252

DIBP REFERENCE(S):  BCC2018/194953

MEMBER:L. Symons

DATE:6 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 06 February 2020 at 11:40am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – dismissal decision – failure to attend Tribunal hearing – application for reinstatement – notification by email – decision under review dismissed

LEGISLATION

Migration Act 1958, ss 362B, 362C
Migration Regulations 1994

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 25 June 2018 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. On 22 January 2020, the Tribunal dismissed the application under s.362B(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.

3. 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.362C(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.

4. The 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. The Tribunal received a letter by email from the applicant on 4 February 2020. In the letter, he stated that he had to vacate his previous residential address in Ashfield because he was not able to pay his rent. He stated that he was not mindful of the fact that his hearing invitation would be sent to this address.

5. The applicant stated that he has been jobless for more than a year because he does not have a valid visa to work or study and has been struggling mentally and financially. .He stated that, due to his negligence, he has missed many opportunities in his life. He stated that if he misses this opportunity he would not “be able to fulfil his parents only dream to see their only son graduate from Australia”. He stated that he was requesting that the Tribunal allow him to stay here until he completes his studies.

6. The Tribunal wrote to the applicant on 19 November 2019 inviting him to attend a hearing on 21 January 2020. The letter was sent to him by email to [the applicant’s email address] which is the email address he provided the Tribunal. This email was not returned undelivered. On 22 January 2020, the Tribunal wrote to the applicant notifying him of the decision to dismiss his application and provided him with a written statement of decision and reasons. He was given until 5 February 2020 to apply for a reinstatement of his application. This letter was also sent to him to the email address above. This email was not returned undelivered. He clearly received this letter as he has responded to it.

7. The applicant sent an email to the Tribunal on 4 February 2020 from the email address above. It is therefore an email address he currently uses. As the hearing invitation was not sent to his residential address, was sent to his current email address, was not returned undelivered, he received and responded to the Tribunal’s letter dated 22 January 2020 which was sent to the same email address and he corresponded with the Tribunal from the same email address, the Tribunal is satisfied that he received the hearing invitation. The Tribunal is not satisfied that he has provided an acceptable explanation for why he did not attend the hearing on 21 January 2020.

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

   DECISION

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

   L. Symons
   Member