Kaur (Migration)

[2017] AATA 1923

Kaur (Migration) [2017] AATA 1923 (11 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Karamjeet Kaur

VISA APPLICANT:  Mrs Gagandeep Kaur

CASE NUMBER:  1618412

DIBP REFERENCE(S):  N16/02086081

MEMBER:Steve Georgiadis

DATE:11 October 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 11 October 2017 at 4:14pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Applicant did not appear – Notification of decision – Health issues

LEGISLATION

Migration Act 1958, ss 65, 362B, 362C, 379A

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 28 October 2016 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. On 28 September 2017 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.  The applicant’s response and request for reinstatement was received on 8 October 2017 and set out as follows:

   “... My name is Pritpal Singh, I am Karamjeet Kaur's husband. She had appealed on behalf of her sister Gagandeep kaur. Karamjeet Kaur chose me as her representative. 
   So, I was doing all the communication until now. We have never gone through the process of hearing. This could be our ignorance.
   To be honest, we did not have any intentions to cancel the hearing on 28th September. 
   I went to the AAT office for hearing. I was advised by the official that it can not take place because Karamjeet Kaur was not present. Karamjeet is recovering from her health issues so I decided to go on her behalf. When I infromed (sic) this to the officials about his then i was told that she must be present.
   Honestly writing, we were under the impression that I can go to the hearing only as I am representing Karamjeet Kaur. In the form of invitation of hearing, I had ticked my name as I will be attending this hearing. I did not ticked any for Karamjeet Kaur.as I am her representative and its (sic) good enough.
   When I got to the hearing then I was told by the officials that Karamjeet Kaur must be present at this hearing. I assured the officials that I can tell Karamjeet to come to AAT ASAP but the officials advised me that this hearing can not take place.
   I deeply apologize AAT for consuming their valuable time on that day. 
   I am requesting on behalf of Karamjeet Kaur that we should be given another chance to attend this hearing. ...”

5. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

6. The Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5). The invitation has not been returned to sender and in addition, two separate SMS reminders were sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given. The Tribunal does not accept the submission made by the applicant’s husband on her behalf that “I am her representative and its good enough.”  The representative has no right of appearance before the Tribunal and the Tribunal wished to hear from the review applicant directly and make observations for the purposes of assessing credibility and for other findings.  The representative sought to retrieve his wife to attend the hearing later that day but this would have taken considerable time and would have been well past the scheduled commencement time leaving the Tribunal with little time to receive evidence to properly consider the application that afternoon.  The review applicant’s offer to bring his wife to attend later on the same day leads the Tribunal to conclude that she was in fact able to attend the hearing at the scheduled time and date to give evidence despite the assertion by her husband / representative of “recovering from her health issues so I decided to go on her behalf.”

7. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or any other information before it beyond that discussed above.

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.

   Stavros Georgiadis
   Member