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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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 ceased and was advised that the agent had indeed forwarded the hearing invitation to the applicant.

8. 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 applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and the previous registered migration agent confirmed that the hearing invitation had been forwarded to the applicant.  No satisfactory reason for the non-appearance has been given.

9. The Tribunal noted the remarks of the Judge in Singh v Minister for Home Affairs [2019] FCA 723 at [20] as follows: ‘The Tribunal has provided a reasonable opportunity for the review applicant to be heard before the Tribunal – or the requirement to act in a way that is “fair and just” (s 357A(3) of the Migration Act) or the opportunity to appear and “give evidence and present arguments” (S360(1) of the Migration Act)) – does not impose on the Tribunal “the impossible task of ensuring that a party takes the best advantage of the opportunity”: cf. Sullivan v Department of Transport (1978) 1 ALD 383 at 403 per Deane J (Fisher J agreeing) (“Sullivan”).’

10. The Tribunal considers a reasonable opportunity has been provided for the review applicant to be heard before the Tribunal.

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

12. On 30 July 2020 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.

13. The review applicants were notified of the dismissal decision on 31 July 2020 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 or 17 August 2020 and that a failure to apply for reinstatement within the 14-day period would result in confirmation of the dismissal decision.

14. 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

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

    De-Anne Kelly
    Member