Kammala Witharanage Fernando (Migration)

[2018] AATA 4703

Kammala Witharanage Fernando (Migration) [2018] AATA 4703 (28 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rajika Dulanjalie Kammala Witharanage Fernando
Miss Chrishi Alexia Danielle Senanayake
Mr Adrian Kushan Dominic Senanayake

CASE NUMBER:  1802321

DIBP REFERENCE(S):  BCC2016/1333205

MEMBER:Meredith Jackson

DATE:28 November 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 28 November 2018 at 10:41am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector – dismissal decision – failure to attend Tribunal hearing – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 362B, 362C

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 October 2016 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 572 visas under the Migration Act 1958 (the Act).

2. On 6 September 2018 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. On 20 September 2018 the primary applicant emailed the Tribunal with the following message: “Regarding our matter, I posted all medicals, documents and hand written letter about the reasons supporting documents. I mail all documents to Brisbane address.”

5. The Tribunal carefully considered whether it was reasonable to interpret the primary applicant’s response, which was submitted within the 14 day period, as a request for reinstatement and concluded it was not reasonable to interpret it as such. Rather, the Tribunal concluded, it was a statement informing the Tribunal that the applicant had already provided the evidence that she wished to provide.

6. As the review applicants did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decisions under review are taken to be affirmed.

   DECISION

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

   Meredith Jackson
   Member