Karnati (Migration)

[2019] AATA 1505

Karnati (Migration) [2019] AATA 1505 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muralidhara Reddy Karnati

CASE NUMBER:  1832346

DIBP REFERENCE(S):  BCC2018/3285147

MEMBER:Adrienne Millbank

DATE:16 May 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 16 May 2019 at 11:52am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – failure to attend Tribunal hearing – application dismissed – reinstatement of application sought – medical certificate provided – medical basis for being unfit to attend hearing – insufficient medical evidence – decision under review affirmed

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

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 15 October 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. On 30 April 2019 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. In the Tribunal’s hearing invitation emailed to the applicant on 28 March 2019 the applicant was advised that if he wished to have his hearing adjourned on medical grounds, he had to provide the Tribunal with a medical certificate certifying that he was unable to attend and give oral evidence. The applicant was advised in the hearing invitation that it is the Tribunal’s general practice to conduct a hearing by telephone if an applicant is unable to attend in person, and that if he was unable to participate in a hearing by telephone on medical grounds, he had to provide a medical certificate that clearly stated this. The applicant was further advised in the hearing invitation that requesting that his hearing be adjourned on medical grounds without providing appropriate medical evidence may result in the Tribunal refusing the request.

6. On 14 May 2019 the applicant sent, through his representative, a request for reinstatement claiming that he had exceptional circumstances and was ill for one month. As noted in the initial dismissal decision the applicant went to a hospital on the evening of 29 April 2019 complaining of chest pains. He provided evidence that he underwent some tests during this hospital visit and was prescribed anti-inflammatory medication.

7. Attached to the reinstatement request was a medical certificate from Dr Debasis Banerjee at Springfield in Brisbane. This is dated 1 May 2019. In this certificate Dr Banerjee states that he examined the applicant on 1 May 2019 and that the applicant ‘will be unfit for usual activities from 29 April 2019 to 2 May 2019 inclusive’.

8. The Tribunal has carefully considered the reinstatement request and the evidence provided. The Tribunal has decided not to reinstate the application for the reason that the Tribunal is not satisfied that the medical information provided including the medical certificate provides adequate justification for the applicant’s non-appearance at the hearing. The medical certificate did not set out the medical basis for the applicant being unfit to attend a hearing. It did not indicate that the applicant was unable for medical reasons to meaningfully participate in a hearing of a few hours. It did not indicate that the applicant was unable for medical reasons to attend the hearing by telephone. For these reasons, the Tribunal is not satisfied that the applicant has provided appropriate medical evidence.

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

   DECISION

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

    Adrienne Millbank
    Member