LEI (Migration)

[2018] AATA 1649

LEI (Migration) [2018] AATA 1649 (11 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Un Ha Lei

CASE NUMBER:  1718505

DIBP REFERENCE(S):  CLF2016/83645 CLF2016/83651 CLF2016/83654 CLF2017/22474 CLF2017/22477 OSF2013/028475

MEMBER:Moira Brophy

DATE:11 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 April 2018 at 2:36pm

CATCHWORDS

Migration – Child (Residence) (Class BT) – Subclass 802 (Child) – Dismissal decision – Failure to attend Tribunal hearing

LEGISLATION

Migration Act 1958, 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 1 August 2017 to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under the Migration Act 1958 (the Act).

2. On 21 March 2018 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. On 5 April 2018 the Tribunal received an email from the migration agent acting for and on behalf of the applicant. The agent stated the applicant failed to attend the hearing because of a telephone malfunction. Because of that malfunction she did not receive the hearing invitation or the agent’s reminder call. The Tribunal checked its own case notes and was satisfied the hearing invitation had in fact been sent to the agent. Prior to hearing SMS had been sent to the telephone number provided by the applicant. Given the hearing invitation had been sent to the agent by email on 23 January 2018 the Tribunal does not regard the telephone malfunction as being the cause of the failure to attend the hearing. In that factual scenario the Tribunal does not consider the request to reinstate to be appropriate.

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

   DECISION

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

   Moira Brophy
   Member