Rahman (Migration)

[2021] AATA 5668

Rahman (Migration) [2021] AATA 5668 (8 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Md Habebur Rahman
Mrs Ismat Zarien
Master Muhammad Razeen Rahman

CASE NUMBER:  1832824

DIBP REFERENCE(S):  BCC2016/2909574

MEMBER:Mary Sheargold

DATE:8 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 08 January 2021 at 12:34pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – dismissal decision – failure to attend Tribunal hearing – application for reinstatement – capacity to attend a telephone hearing – voluntary self-isolation – dismissal confirmed – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 360, 362B, 362C, 379
Migration Regulations 1994

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 25 October 2018 to refuse to grant the visa applicants Regional Employer Nomination (Permanent) Subclass 187 visas under the Migration Act 1958 (the Act).

2. On 2 December 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.

3. The review applicants were notified of the dismissal decision on 18 December 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 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 applicants 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.

5. At the outset, the Tribunal notes that on 1 December 2020, the review applicants had requested a postponement of the hearing set for 10:00am (VIC time) on 2 December 2020.  The primary review applicant wrote to the Tribunal and stated:

   I regret to inform you that I am very ill and a suspected COVID19 patient and I voluntarily would like to go for a 14 days isolation. This is why I am very upset.  I have sore throat and continuous coughing otherwise I would offer for a telephone hearing instead as I do not want to miss this opportunity to put my claim face-to-face in the hearing. I hope you understand my situation. I enclose herewith the medical certificate for your ready reference. Please acknowledge my email ASAP.

6. The Tribunal reviewed the medical certificate from Dr Naim Islam of Lakemba Family Healthcare provided by the primary review applicant as an attachment to his email.  The medical certificate reads:

   This is to certify that [the primary review applicant] is suffering from a medical illness and will be unfit for work from 1/12/2020 to 4/12/2020 inclusive. He is not suffering from COVID 19.

7. Upon consideration of the evidence provided and the noted contrast in the primary review applicant’s assertions compared with the doctor’s diagnosis, and in accordance with the primary review applicant’s request to have his email acknowledged “ASAP”, the Tribunal made numerous attempts to contact the primary review applicant by telephone on 1 December 2020 to advise him that, subject to receipt of medical evidence confirming he would be unable to participate in a brief telephone hearing (noting that he was invited to attend a telephone hearing, not a face-to-face hearing), the hearing would proceed as scheduled.  The Tribunal’s calls all went unanswered and no voicemail service was available.

8. On the morning of 2 December 2020, the Tribunal made another attempt to contact the primary review applicant by telephone to confirm that the hearing would proceed as scheduled and that his request for a postponement would not be granted in the absence of further medical evidence regarding his capacity to participate in a telephone hearing.  Again, the primary review applicant did not answer the telephone call placed to him nor did he answer the telephone calls from the Tribunal to facilitate his attendance at the hearing as scheduled.

9. Having considered the medical evidence provided on 1 December 2020 and the primary review applicant’s email, the Tribunal was not satisfied that the primary review applicant was unfit to attend the telephone hearing at 10:00am (VIC time) on 2 December 2020.  In its non-appearance decision dated 2 December 2020, the Tribunal stated at paragraphs [3] and [4]:

   [3] The Tribunal has reviewed the medical certificate provided by the applicant and notes it states he is unfit to attend work from 1 December 2020 to 4 December 2020.  The medical certificate does not indicate that the applicant would be unable to participate in the hearing by telephone as scheduled.  Further, the Tribunal notes that the medical certificate provided explicitly states that the applicant is not suffering from Covid-19.

   [4] Tribunal officers made 3 separate attempts to speak with the applicant in the afternoon of 1 December 2020, as it appeared from the applicant’s email that he did wish to appear before the Tribunal.  The applicant did not answer any of the telephone calls placed that afternoon, nor 4 separate calls placed to him on the morning of 2 December 2020.  Whilst the Tribunal acknowledges that the applicant is unwell, the Tribunal finds that there is insufficient evidence before it to demonstrate that he was not able to participate in the hearing by telephone, even if he was in voluntary self-isolation.

10. The Tribunal notes that is has no records of the primary review applicant making any further attempts to communicate with it until 22 December 2020.  The Tribunal wrote to the applicants on 21 December 2020 advising them that their application had been dismissed due to the non-attendance at the hearing.  The applicants were advised that a request for reinstatement of the application must be made by no later than 5 January 2021.

11. The primary review applicant responded to the Tribunal’s letter on 22 December 2020 seeking reinstatement of the application.  In his request, he stated:

    I request you to reinstatement [sic] of my appeal application to the Administrative Appeal Tribunal (the Tribunal) for the sake of natural justice.  I would like to repeat that I am a genuine appellant and I had a several witnesses in support of my appeal including the employer sponsor.  The Tribunal’s decision was made on the very same day as I failed to present myself to the hearing scheduled hearing day on 02/12/2020.

    I accept that the Hon. Tribunal has invited me as per s.360 of the Migration Act and the method of transmission was electronic as per s.379A(5), however I hope the Hon. Tribunal is very much aware of the pandemic.

    I have undergone voluntary self-isolation (quarantine) from the very day of my medical check up on 01/12/2020 as the doctor has asked me to take enough rest.  According to the doctor’s advice most of the time of my isolation I kept my phone silent or off which also worried my wife who tried to contact me at the same time as Tribunal.  I told my wife about my health condition following the doctor’s suggestion on 01/12/2020.  Surely I would try to attend you phone call both on 1^st and 2^nd December 2020 if it was in my knowledge. I did not undertake the COVID19 test in fear of further deterioration of my mental state rather I went for self isolation.

    I did not deliberately want to avoid the Tribunal neither my wife on the aforementioned dates who repeatedly failed to get hold of me on the phone. My wife understood when I later have explained my situation here.

    I now urge you to reinstatement [sic] the application and give me the opportunity to sit for the hearing along with all my evidence.  I hope the Tribunal will have admired to the natural justice.

    Should you have any queries please feel free to contact me, however I prefer contacting via Email as most of the time my phone kept silent. Please acknowledge my Email.  Thanking you in anticipation.

12. The primary review applicant enclosed a copy of a statutory declaration from his friend, Mr Shabbir Ahamed, dated 22 December 2020.  Mr Ahamed delcares that he is a close friend of the primary review applicant, and that he was aware that the primary review applicant was in self-isolation for 2 weeks ending on 15 December 2020.  Mr Ahamed declares that his wife cooked meals for the primary review applicant on several occasions during his self-isolation and that Mr Ahamed had supplied him food at the primary review applicant’s home.

13. Whilst the Tribunal accepts the declarations made by Mr Ahamed, it notes that the contents of his statutory declaration do not give any evidence as to whether the primary review applicant was able to attend the hearing on 2 December 2020. Accordingly, the Tribunal wrote to the applicants again on 23 December 2020 to request further evidence to support the primary review applicant’s claims that he was unable to participate in the telephone hearing on 2 December 2020.  The Tribunal wrote:

    The Tribunal notes that on receipt of your email and medical certificate on 1 December 2020, three separate attempts were made to contact you to seek further evidence regarding your condition. The Tribunal notes that your assertion in your email of that date that you were "a suspected Covid-19 patient" was in stark contrast to the medical evidence provided: the general practitioner who attested to your unfitness to attend work from 1 December 2020 to 4 December 2020 expressly stated that you did not have Covid-19.

    The Tribunal notes that a medical certificate declaring unfitness to attend work may not be considered adequate evidence that you are unable to attend a hearing by telephone. The Tribunal notes your assertion that you chose not to undertake Covid-19 screening yet chose to self isolate for 14 days “as the doctor has asked [you] to take enough rest” (noting this was not a request nor a direction to self isolate), and that “according to the doctor’s advice most of the time my isolation I kept my phone silent or off which also worried [your] wife”. The Tribunal notes that it has been provided with no evidence from your general practitioner regarding advice to you to put your phone on silent or switch it off from 1 December 2020 to 15 December 2020.

    The Tribunal notes that on the morning of your scheduled hearing, another attempt was made to call you. You did not answer that call, and no voicemail service was available. Three calls were made to you at the time your hearing was scheduled, and none of these calls was answered either. You note in your response of 22 December 2020 that “surely I would try to attend your phone call both on 1st and 2nd December 2020 if it was in my knowledge.” The Tribunal notes it is reasonable to expect that the Tribunal may attempt to contact you on those dates, given you requested on 1 December 2020 a postponement of your hearing scheduled for 2 December 2020.

    The Tribunal notes it has no record of any attempts made by you to confirm that your hearing had been postponed or whether it was proceeding as scheduled. The Tribunal acknowledges the statutory declaration from Shabbir Ahamed dated 22 December 2020, but notes that this does not provide adequate evidence that you were unfit to attend a telephone hearing on 2 December 2020. The Tribunal will consider any further evidence you provide by the deadline of 4 January 2021 to explain why you were unfit to attend a hearing by telephone on 2 December 2020 prior to making a decision regarding the reinstatement or dismissal of your application.

14. On 4 January 2021, the primary review applicant sent a further email to the Tribunal.  That email stated:

    I refer to your letter, dated: 23/12/2020, requesting further query about the reason of my absence on the scheduled hearing day that I missed on medical condition. I regret to tell you that I do not have any further explanation or documents in relation to my last submission (22/12/20). I already have explained to you the reason of my absence and phone disconnection, however if you require evidence about my health condition around the subject time I can ask my friend, who provided a StatDec earlier to AAT, to give further evidence before the AAT if I am lucky enough to have another hearing invitation. My wife overseas is also keen to provide evidence in support of my last letter, dated 22/12/2020, to the AAT.

    I am now completely relying on your understanding of the global health condition (pandemic) and your discretion as well. I have no further comment. Please acknowledge my Email as soon as possible.

15. The Tribunal is not obliged to opine as to whether the primary review applicant may have contracted Covid-19, nor whether he should have undertaken a screening test for Covid-19, nor whether was either mandated to self-isolate or should have voluntarily self-isolated.  However, the Tribunal is concerned by the inconsistencies in relation to the primary review applicant’s reliance on his belief that he was “a suspected COVID19 patient” with his decision not to be tested for the disease on the basis that his mental health may suffer as a result, and also his decision to switch off or leave on silent his mobile phone in circumstances where he was purportedly dependent on friends such as Mr Ahamed in providing him with food during his voluntary quarantine and where he may reasonably expect to be contacted by his wife overseas, and by the Tribunal in relation to this application.

16. The Tribunal notes the primary review applicant’s references in his written correspondence to the impact of the global Covid-19 pandemic and whether or not the Tribunal is understanding of, or sympathetic to, the applicants’ position because of it.  The Tribunal notes it had listed this application to be heard by telephone principally to reduce the risks to both the applicants and Tribunal staff in relation to Covid-19.  The Tribunal notes again the explicit advice of the primary review applicant’s general practitioner in the medical certificate dated 1 December 2020 that he was not suffering from Covid-19 on 1 December 2020, and notes the lack of evidence supporting the primary review applicant’s decision to self-isolate and also switch off his mobile phone for a 2 week period including the date on which this application was listed to be heard by telephone.  The Tribunal notes that the applicants made no attempt to contact the Tribunal at the cessation of the primary review applicant’s voluntary self-isolation to determine the status of the application.

17. As set out in the non-appearance decision dated 2 December 2020, the Tribunal accepts that the primary review applicant was unfit for work from 1 December 2020 to 4 December 2020.  The Tribunal notes that the applicants were made aware that a medical certificate certifying a person’s unfitness to attend work may not be sufficient evidence to demonstrate that they were unfit to attend a telephone hearing before the Tribunal, and notes that the applicants have provided no further medical evidence in relation to the primary review applicant’s capacity to attend a telephone hearing or otherwise on 2 December 2020.

18. In reaching its findings, the Tribunal notes again the evidence from the general practitioner that the primary review applicant was not suffering from Covid-19 on 1 December 2020. There is no medical or other evidence before the Tribunal to demonstrate that the primary review applicant was unfit or otherwise reasonably unable to attend a telephone hearing as scheduled on 2 December 2020.  Further, the Tribunal notes that Mr Ahamed’s statutory declaration does not assist the applicants to establish that the primary review applicant was unable to attend the telephone hearing during his voluntary self-isolation. 

19. In the absence of evidence to substantiate his claims, the Tribunal is unable to find that the primary review applicant was unable to participate in the scheduled hearing.  The Tribunal finds that no satisfactory reason for the applicants’ non-attendance at the hearing at 10:00am (VIC time) on 2 December 2020 has been given.  Neither the applicants’ request for reinstatement nor the primary review applicant’s supplementary submission have provided sufficient evidence to demonstrate that the primary review applicant was unfit to participate in the scheduled hearing.

20. Therefore, the decision to dismiss the application is confirmed. In these circumstances, the decisions under review are taken to be affirmed.

    DECISION

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

    Mary Sheargold
    Member