Mahajan (Migration)

[2019] AATA 4699

Mahajan (Migration) [2019] AATA 4699 (23 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paras Mahajan

CASE NUMBER:  1715647

DIBP REFERENCE(S):  BCC2015/3612093

MEMBER:Hugh Sanderson

DATE:23 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 23 January 2019 at 1:56pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – no appearance at hearing – application for review of refusal dismissed – application for reinstatement – applicant’s change of contact details – decision to dismiss application confirmed – decision under review affirmed

LEGISLATION

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

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 30 June 2017 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2. The applicant’s agent wrote to the Tribunal on 7 January 2019 stating that they had been unable to get into contact with their client after many attempts and would not be attending the hearing.

3. On 8 January 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.

4. 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. The notice was sent to the applicant’s agent and also to the applicant’s personal email address which had been provided by the agent to the Tribunal.

5. The review applicant’s agent wrote to the Tribunal on 21 January 2019 claiming that the applicant was unable to attend the hearing due to unforeseen circumstances. He attached a statutory declaration from the applicant which stated as follows:

   I am the applicant in this partner visa being reviewed by the Administrative Appeals tribunal.

   I note that I had an interview on 8 January 2019 at 8:30am. I was unable to attend.

   My partner is convicted and serving time in gaol for drug related offences. Due to safety reasons and genuine fear to my life I changed my contact details (email and address).

   I note that my Solicitor was attempting to contact me for over two months however due to safety concerns and desperation I was not able to update my Solicitor of my new contact details.

   I never aimed to waste the respected tribunal member’s time and had genuine reasons for not attending the hearing.

   I ask the Administrative Appeals tribunal reinstate my matter and allow me to satisfy the Tribunal members interview queries. (sic)

6. The Tribunal does not consider it appropriate to reinstate the application. The applicant has not provided any information or explanation as to what the “safety reasons and genuine fear” he claims to have suffered. There is no information provided as to why the “safety reasons and genuine fear” would have prevented the applicant contacting his agent or advising the Tribunal of any change of address or contact details. No information has been provided to why any “safety reasons and genuine fear” would have prevented him from attending the hearing before the Tribunal.

7. At this time, the applicant has not provided the Tribunal any change of address or contact details. He has not provided an explanation as to why the SMS reminders sent to him on his telephone number by the Tribunal on two occasions were not responded to. There is no information which would indicate that these messages were not successfully sent to the telephone number provided by the applicant. If the applicant had changed his contact details, there is no explanation as to how he has now been contacted, despite the fact that the notification of the dismissal of his application was sent to the same contact details he has previously provided to the Tribunal as well as to his agent and which his agent provided to the Tribunal as the one he had been attempting to contact him on for the previous two months.

8. The applicant has stated that his sponsor has been convicted and serving time in gaol for drug related offences. No information has been provided of any continuing relationship between the applicant and the sponsor or any information which would indicate the applicant would meet any alternate criteria for the grant of the visa. No explanation has been provided by the applicant as to his current circumstances or where he has been.

9. The Tribunal is not satisfied the statement provided by the applicant provides any valid reason why it would be appropriate to reinstate the application. The Tribunal is not satisfied the applicant has provided any circumstances of his claimed relationship with the sponsor which would provide a valid reason to reinstate the application. The Tribunal finds that the applicant was validly advised of the hearing date and appropriate reminders were sent to him by the Tribunal by SMS to his telephone number. The Tribunal finds that throughout these proceedings the applicant has been represented by his agent and there is nothing to indicate that the applicant has not been able to have continuing contact with his agent and advise him of any change in his circumstances. The applicant has not advised the Tribunal of any change of address or contact details and notes the applicant was able to receive the dismissal notice which was sent to the applicant’s contact details as he has previously provided to his agent and to the Tribunal.

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

    DECISION

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

    Hugh Sanderson
    Member