GONCALVES PRIOSTE (Migration)

[2021] AATA 1647

GONCALVES PRIOSTE (Migration) [2021] AATA 1647 (15 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gilberto GONCALVES PRIOSTE
Mrs Vania FREITAS SOUSA

CASE NUMBER:  1811901

DIBP REFERENCE(S):  BCC2016/2737424

MEMBER:Mary Sheargold

DATE:15 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 15 April 2021 at 8:48am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – dismissal decision – failure to attend Tribunal hearing – unsupported application for reinstatement – decision under review affirmed

LEGISLATION

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

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 18 April 2018 to refuse to grant the visa applicants Temporary Business Entry (Class UC) Subclass 457 visas under the Migration Act 1958 (the Act).

2. On 26 March 2021, 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. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

5. The review applicants’ representative wrote to the Tribunal on 4 April 2021 requesting a reinstatement of this application because the first named review applicant “was not feeling well (had to isolate due to sore throat) and he is very sorry for not providing any details about his ill health and his inability to attend hearing before this date.”  The applicant’s representative requested that the Tribunal “please let us know the new hearing date so that applicants can get a fair go at AAT.”

6. On 7 April 2021, the Tribunal wrote to the review applicants at their address for correspondence (being the email address for the authorised representative) and requested supporting medical documentation to corroborate the assertions in the representative’s email dated 4 April 2021. The Tribunal’s letter noted that the review applicants had been invited to a brief telephone hearing on 23 March 2021.  The Tribunal requested the supporting evidence be provided by no later than 9 April 2021, being the last date for submissions in relation to reinstatement of this application.  As at the date of this decision, no further correspondence has been received by the Tribunal.

7. The Tribunal carefully considered the applicant’s request for reinstatement, noting that this application was listed for a brief telephone hearing.  The Tribunal notes that as the matter was listed for hearing by telephone and not in person, the first named review applicant’s purported isolation on the hearing date due to a sore throat should not necessarily have prevented the review applicants from attending the hearing as scheduled. 

8. In the absence of supporting medical evidence to confirm that the first named review applicant was too unwell to participate in a brief telephone hearing on 23 March 2021, the Tribunal is not persuaded that the review applicants’ application should be reinstated.  The Tribunal finds there is insufficient evidence to support the review applicants’ contention that they were unable to attend the hearing scheduled on 23 March 2021.

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

   DECISION

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

    Mary Sheargold
    Member