Mahat (Migration) - [2023] AATA 928

Mahat (Migration) [2023] AATA 928 (24 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Subash Mahat
REPRESENTATIVE:  Miss Yujie Rong (MARN: 1801289)
CASE NUMBER:  2210707
HOME AFFAIRS REFERENCE(S):          BCC2020/2559767
MEMBER:T. Quinn
DATE:24 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal confirms the decision to dismiss the application.

Statement made on 24 March 2023 at 9:40am

LEGISLATION
Migration Act 1958, ss 65, 360, 362B(1A)(b), 362C(5), 379, 425

CASES
Minister for Immigration v SZFHC [2006] FCAFC 73
Nguyen v MHA [2018] FCCA 3045
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 July 2022 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).
On 9 March 2023 the Tribunal dismissed the application under section 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.
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 section 362C(5) of the Act. 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 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.
The applicant’s request for reinstatement claims that: he has had mental health problems, has been stressed, isolated and homesick; was extremely ‘panic and depressed’’ when his visa application was refused and after seeking a review of that decision felt like escaping from everything so changed his contact numbers; he did not provide his agent with his new phone number because of his mental state; the emails sent by the AAT ‘went to my spam. I also missed the email notification’ and he could not turn up on the hearing day; he saw the dismiss notification in his spam and contact his agent to apply for reinstatement; he now has an appointment with the doctor to improve his mental health. He has also provided a new confirmation of enrolment created on the same date as his submissions.
The applicant has provided no corroborating evidence for his change in contact details or that the emails from the Tribunal were being received by his email server into his ‘spam’. Nor has he provided any corroborating medical evidence for the state of his mental health.
It is an applicant’s responsibility to ensure his contact details with the Tribunal are correct and up to date. Without corroborating evidence, I do not accept the applicant’s claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 928
Decision Date: 24 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application concerning a Student (Temporary) (Class TU) Subclass 500 visa. The applicant failed to attend a hearing before the Tribunal, and the Tribunal had previously dismissed their application on this basis. The applicant sought a review of this dismissal.

The primary legal issue before the Tribunal was whether the applicant's failure to attend the hearing was excused, and consequently, whether the dismissal of their visa application was appropriate. The Tribunal was required to determine if the hearing invitation had been sent in accordance with the relevant provisions of the *Migration Act 1958* (Cth) and whether the circumstances warranted a reinstatement of the application.

The Tribunal found that the hearing invitation had been sent in accordance with section 379A(5) of the *Migration Act 1958* (Cth). Given this, the Tribunal concluded that a reinstatement of the application was not appropriate. Therefore, the Tribunal confirmed the earlier decision to dismiss the application. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.DECISION The Tribunal confirms the decision to dismiss the application.T. QuinnMember

Ratio Decidendi

Legal Principle Established

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