Lim (Migration)

[2019] AATA 6928

Lim (Migration) [2019] AATA 6928 (6 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr See Hin Lim
Ms Sharene Swee Ling Chuah
Miss Elena Renyi Lim
Miss Millen Sinyi Lim

CASE NUMBER:  1707105

DIBP REFERENCE(S):  BCC2016/1837209

MEMBER:Stavros Georgiadis

DATE:6 November 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 6 November 2019 at 11:11am (SA time)

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – consent to decision on papers and no appearance at hearing – application for review dismissed – application for reinstatement – no reasons for non-appearance or other information provided – application for reinstatement dismissed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 360, 362B(1A)(b), 362C(5), 379A(5)

Migration Regulations 1994 (Cth)

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 27 March 2017 to refuse to grant the visa applicants Regional Employer Nomination (Permanent) Subclass 187 visas under the Migration Act 1958 (the Act).

   On 4 November 2019 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. The applicants had notified the Tribunal in writing prior to the hearing that they would not be attending the hearing and submitted that the matter be decided on the papers, “on the basis of the existing documentations before the AAT.”

2. On 4 November the Tribunal decided to dismiss the application giving the following reasons:

   ... 1. The review applicants were invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 4 November 2019 at 12:30pm (WA time). The invitation letter dated 21 October 2019 stated that the Tribunal “considered the material before us but we are unable to make a favourable decision on this information alone.” The invitation also set out that if the applicants did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

   2. On 28 October 2019 the applicants advised the Tribunal, through their authorised migration agent, that they would not be attending the hearing. There was no request made to adjourn the hearing. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicants about the hearing. No satisfactory reason for the nonappearance has been given.

   3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal. ...

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 (on 5 November 2019). For the following reasons, the Tribunal does not consider it appropriate to reinstate the application.

5. The Tribunal notes the issue raised by the applicant regarding the SMS reminders sent five business days and one business day before the scheduled hearing. The Tribunal notes the SMS reminders were sent to the applicant’s mobile phone number. The Tribunal remains satisfied that the review applicants were properly invited to the hearing in accordance with s.379A(5), and accepts such notice was received because the applicants responded to the hearing invitation declining attendance, as already discussed.

6. The Tribunal finds that the applicants were already on notice through the Tribunal’s letter of 21 October 2019 inviting attendance to the hearing, which sets out that the Tribunal considered the material before it but “is unable to make a favourable decision on this information alone.” The Tribunal is satisfied that the applicants were provided with an opportunity to attend a hearing and for the Tribunal to receive evidence on material matters relating, for example, to any approved nomination of an occupation, which is a prerequisite for the Subclass 187 visas sought by the applicants.  The Tribunal also sought to assess potentially other relevant matters at the hearing, such as credibility, by observing the applicants personally and to test oral evidence in respect of the criteria for the visa. The absence of the applicants at hearing denied the Tribunal of this.

7. Further the notification sent to the applicants regarding the decision to dismiss sets out: “You may apply to us, in writing, for reinstatement of the application by 19 November 2019.  In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.” No reasons have been provided as to why the applicants failed to appear at the hearing. The Tribunal remains of the view that no satisfactory reason for the nonappearance has been given and no adjournment request was made.

8. The Tribunal’s letter of 21 October 2019 inviting the applicants’ attendance to the hearing also sets out: “if the applicants did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.” The Tribunal is satisfied from this that the applicants therefore, were alerted to this possibility.

9. For the reasons above, 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.

    Stavros Georgiadis
    Member