PRECIOUS PREMIUM PTY LTD (Migration)

[2021] AATA 96

PRECIOUS PREMIUM PTY LTD (Migration) [2021] AATA 96 (6 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  PRECIOUS PREMIUM PTY LTD

CASE NUMBER:  1804254

DIBP REFERENCE(S):  BCC2017/1030021

MEMBER:Warren Stooke AM

DATE:6 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 6 January 2021 at 7.18am

CATCHWORDS
MIGRATION – Business Nomination – hearing postponement request – non-appearance before the Tribunal – application dismissed – application for reinstatement declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 362B, 362C, 379A
Migration Regulations 1994 (Cth), r 5.19

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 to refuse to approve a nomination under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. On 18 December 2020 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.

3. 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.

4. The review applicant applied for reinstatement of the application on 1 January 2021, which is within 14 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

5. On 25 November 2020, the applicants sought a postponement of the hearing scheduled for 2 December 2020, which the Tribunal agreed to reschedule for 18 December 2020. 

6. At 5.59pm on Thursday 17 December 2020, the representative requested a postponement of the hearing based on a requirement to secure documentation from the applicant’s accountant and the festive season. The Tribunal considered the request and advised the representative that the postponement request had been denied, as accounting documentation relating to the business for 2020 could be submitted post the hearing and that given that prior years would already have needed to be filed with the ATO, such documentation should be available.

7. Further, the original application was filed for review on 19 February 2018, which has provided a significant elapse of time until the first notice of an intended hearing on 25 November 2020 to obtain the requisite material to support the review application. The Tribunal provided the applicant with a postponement of more than three weeks to secure the requisite material and file with the Tribunal before the listed hearing of 18 December 2020.

8. The Tribunal corresponded with the representative for the applicant, prior to the scheduled hearing at 10.00am on 18 December 2020 with the following advice concerning a request for a second postponement of a hearing pertaining to the applicant in the following terms:

   “Dear Mr Kilaru

   HEARING POSTPONEMENT REQUEST– PRECIOUS PREMIUM PTY LTD
   I am writing in relation to the application for review made by PRECIOUS PREMIUM
   PTY LTD in respect of a decision to refuse a business sponsorship application.
   On 1 December 2020 we sent a letter inviting you to attend a hearing on 18 December 2020 to give evidence and present arguments relating to the issues arising in your case.

   On 17 December 2020 we received a request that the hearing be postponed. The
   Member has considered the request carefully but has decided not to postpone the
   hearing, given the extended time since the application was made and the requirement to complete ATO documents in the years in which the business has operated. The tax return for 2020 can be submitted after the hearing and prior to decision, if this is pending.

   The hearing will go ahead as scheduled today, 18 December 2020 at 10am.
   If you have any questions, please email [email protected], or contact me on the
   number listed below, or telephone our national enquiry line on 1800 228 333. For
   language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”

9. 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 that two separate SMS reminders were also sent to the review applicant about the hearing. The Tribunal hearing attendant endeavoured to contact the representative and the parties by telephone up until 10.15am without response. No satisfactory reason for the non-appearance has been given and the application for postponement was denied by 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.

    Warren Stooke AM
    Member