Mahat (Migration)
[2023] AATA 928
•24 March 2023
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
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) Subclass 500 visa – applicant failed to attend tribunal hearing – hearing invitation was sent in accordance with section 379A(5) of the Act –a reinstatement of this application is not appropriate – dismissal confirmed – decision under review affirmed
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 3045STATEMENT 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 that the emails sent to him regarding his hearing were received by his email server into his ‘spam’.
At no stage has the applicant filed a mobile phone number that was different to the phone number listed in his application for review form. It is incumbent upon applicants to ensure their current details are listed with the Tribunal.
The Tribunal is not required to send out SMS reminders to applicants and text message reminders are not part of the notification of hearing requirements pursuant to section 360A (or section 425A for Part 7) of the Act.[1] The hearing invitation was sent to the authorised email address for the applicant. As long as the Tribunal satisfies the notification requirements under section 360A of the Act when inviting an applicant to appear, there is no statutory obligation to take further steps to invite the applicant to appear, or remind an applicant to appear.[2] The Courts have held that there is also no legal obligation to follow up where an SMS hearing reminder has failed - the Courts have held that failed SMS hearing reminder texts do not impede upon the Tribunal’s right to exercise the discretion under section 362B of the Act to dismiss the application without taking any further steps to enable the applicant to appear.[3]
[1] Nguyen v MHA [2018] FCCA 3045 at [167].
[2] Minister for Immigration v SZFHC [2006] FCAFC 73 at [39].
[3] EIU17 v MHA [2019] FCCA 1218 at [21]; Kang v MIBP [2017] FCCA 2785 at [30].
In his submissions of 23 March 2023 sent to the Tribunal requesting reinstatement, the applicant indicated emails from the AAT went to his ‘spam’ but did not provide corroborating evidence in relation to this. The Tribunal did not receive a ‘return to sender’ or any correspondence indicating that the hearing invitation had not been received by the applicant prior to his submissions of 23 March 2023, save for an email from his representative indicating the representative could not get in touch with his client. If the applicant has not maintained his contact details with his agent, I do not consider this a reason to reinstate his application for review in the circumstances. Maintaining up to date contact details with an individual running the review application is also something incumbent on all applicants who have decided to engage an agent.
The hearing invitation was sent to the authorised email address for the applicant pursuant to section 360 of the Act, was not returned to sender and was sent in accordance with section 379A(5) of the Act. There is no evidence, outside of the applicant’s assertion, suggesting the hearing invite was not successfully sent to the applicant.
The hearing invitation sent to the applicant on 21 February 2023 stated if the applicant did not attend his hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
I find that the hearing invitation was sent to the applicant’s registered email address on 21 February 2023 and there is no corroborating evidence suggesting that this email was not received.
I have considered all the material before me and do not consider a reinstatement of this application is appropriate in the circumstances.
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. Quinn
Member
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