Patel (Migration) - [2020] AATA 4601

Patel (Migration) [2020] AATA 4601 (20 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Pritikumari Hargovindbhai Patel
Mr Prashantkumar Kundankumar Patel Aka Thakkar
Master Samar Patel
Miss Veeva Patel
CASE NUMBER:  1825238
DIBP REFERENCE(S):  BCC2017/4332926
MEMBER:De-Anne Kelly
DATE:20 August 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal confirms the decision to dismiss the application.

Statement made on 20 August 2020 at 3:46pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – dismissal decision – failure to attend Tribunal hearing – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 359, 360, 362B, 362C, 379
CASES
Singh v Minister for Home Affairs [2019] FCA 723
Sullivan v Department of Transport (1978) 1 ALD 383
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 13 August 2018 to refuse to grant the visa applicants’ Employer Nomination (Permanent) Subclass 186 visas under the Migration Act 1958 (the Act).
The review applicant was invited by email sent to the email address of her registered migration agent under s.360 of the Migration Act 1958 to appear before the Tribunal on 29 July 2020 at 9.30am.
She was invited to appear by telephone before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in her case.
The applicant was advised that to help slow the spread of COVID-19 (coronavirus), the AAT was not holding face to face (in person) hearings since Monday, 23 March 2020 and was closed to all visitors until further notice. As the Tribunal was not holding in-person hearings, it was arranged for her to appear by telephone.
The Tribunal called her at the specified date and time. The invitation stated that if they 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 day following the hearing invitation being sent, the registered migration agent sent a form signed by the applicant ceasing his engagement as her representative and advising that all correspondence was to be forwarded to the applicant.
At the time and date of the hearing, the Tribunal had a Gujarati interpreter ready by telephone and the hearing attendant telephoned the mobile number given for the applicant with the review application. The mobile phone went to message bank and the Tribunal attempted to call for another 10 to 15 minutes at which time the spouse of the applicant answered the mobile and stated that his wife was at another location and they were unaware that there was a hearing scheduled for that time and date. The spouse did not give any other explanation to the Tribunal for the applicant’s inability to attend the telephone hearing.
Concerned that the applicant may not have received the hearing invitation, the Tribunal under s.359(1) and (2) telephoned the migration agent whose services had…

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: [2020] AATA 4601
Decision Date: 20 August 2020

CaseChat Overview and Summary

The applicant, Mr. Patel, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a decision to dismiss his application for a Subclass 186 Employer Nomination Scheme visa. The core of the dispute concerned the Tribunal's dismissal of Mr. Patel's application for failing to attend a scheduled hearing.

The primary legal issue before the court was whether the Tribunal had erred in law by affirming the dismissal of Mr. Patel's visa application, specifically in circumstances where he did not apply for reinstatement within the prescribed 14-day period following his failure to attend the hearing.

The Tribunal's decision was based on the applicant's failure to attend the hearing and his subsequent failure to apply for reinstatement of his application within the 14-day timeframe stipulated by the relevant procedural rules. As a consequence of this inaction, the Tribunal was obliged to confirm the dismissal of the application, and under the Migration Act 1958 (Cth), this confirmation meant that the original decision to refuse the visa was taken to be affirmed. The Member of the Tribunal confirmed the decision to dismiss the application.

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

As the review applicants did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decisions under review are taken to be affirmed.DECISION The Tribunal confirms the decision to dismiss the application.De-Anne KellyMember

Ratio Decidendi

Legal Principle Established

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