Singh (Migration)

[2016] AATA 4975

Singh (Migration) [2016] AATA 4975 (10 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kulbir Singh

CASE NUMBER:  1600023

DIBP REFERENCE(S):  BCC2015/1421074

MEMBER:Hugh Sanderson

DATE:10 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 10 May 2016 at 2:46pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – failure to attend hearing – generic medical certificate provided – hearing postponed – failure to attend rescheduled hearing – application not reinstated – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 362B, 362C

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 on 16 December 2015 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2. On 22 April 2016 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3. The 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 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 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.

   Information before the tribunal

5. When the applicant filed his application with the tribunal, the applicant provided documents which had previously been provided to the department. No current or any other relevant information was provided.

6. The tribunal wrote to the applicant on 22 February 2016 inviting him to appear before the tribunal for a hearing listed for 6 April 2016 at 8:30am. He was invited to provide further information in support of the application at least seven days prior to the hearing. He was advised that the tribunal wished to take evidence from the sponsor at the hearing. The applicant provided to the tribunal a response to the hearing on 26 February 2016 advising that he, the sponsor and his cousin’s sister would attend the hearing.

7. At about 3:00pm on 5 April 2016 the applicant telephoned the tribunal and advised a tribunal officer that he was not feeling well and would be unable to attend the hearing. He claimed that he had an appointment with the doctor that afternoon. He asked for the hearing to be postponed. He was advised by the tribunal officer that he should provide to the tribunal the medical certificate, specifically stating the reason why he was unable to attend the hearing and that a generic certificate stating that he was unfit for work/study may not be accepted by the tribunal.

8. The applicant failed to attend the hearing listed for 6 April 2016. At about 10:20am the applicant sent a fax message to the tribunal stating that he was “really sick from last evening” and requested another date for the hearing. The applicant provided a medical certificate signed by Dr Nick Walder. The certificate stated as follows:

   To Whom It May Concern

   This is to certify that Mr Kulbir Singh is suffering from a medical condition and will be unfit for work or study from Wednesday, 6 April 2016 to Wednesday, 6 April 2016 inclusive

   This Certificate was completed on 6/4/2016

9. The tribunal wrote to the applicant on 6 April 2016 confirming a postponement of the hearing. The hearing was then listed for 22 April 2016 at 8:30am. The tribunal advised the applicant that a further postponement of the hearing on medical grounds would not be granted unless the applicant provided the tribunal a full report from his treating doctor, indicating why he was unable to attend before the tribunal. He was advised that a brief certificate stating that he was “unfit for work or study” will not be sufficient.

10. The applicant wrote to the tribunal by facsimile on 15 April 2016 confirming that he and the sponsor would attend the hearing. He provided a copy of the submissions that had previously been provided by his agent to the department dated 10 November 2015.

11. The applicant did not attend the hearing on 22 April 2016 and did not contact the tribunal at any time that day to provide any reason for his nonappearance. The tribunal issued a decision dismissing the application under s.362B(1A)(b) at 3:27pm that day. The applicant was provided a copy of the decision by the tribunal by email that day.

12. The applicant wrote to the tribunal on 2 May 2016 by way of facsimile stating as follows:

    I am writing this letter regarding my review application refusal partner visa. My hearing was on 22 April 2016. But unfortunately I could not attend the hearing. I was really sick on hearing days. I send my application to tribunal via fax but my application paper has missing fax machine. This hearing most important for me. I can proof something. I want give evidence and tell something to tribunal member. I request to member please understand my situation. Please give me once chance, so I can proof. I request to member please reinstatement my hearing.

13. The applicant did not provide any medical certificate or any other information which would indicate that he was unable to attend the hearing when listed.

14. The applicant contacted the tribunal on 4 May 2016 and spoke to a tribunal officer. He said that he had been trying to send an email to the tribunal. The officer confirmed that the tribunal had received the facsimile on 2 May 2016. No further information was provided by the applicant.

15. The applicant wrote to the tribunal on 6 May 2016 where he stated as follows:

    I am writing this letter about my reinstatement application. I already send my application few days ago. I am waiting for tribunal response. My hearing was on 22 April 2016 but regarding my health problem I couldn’t attend the hearing. This hearing very important for me. I request to case officer and member please give me one chance. So I can proof something about my case. I hope tribunal will understand my situation.

    Consideration of evidence

16. The applicant has provided no information apart from his claim that he was “really sick on hearing days” as to why he failed to attend the hearing on 22 April 2016.

17. When the applicant failed to attend the first hearing listed on 6 April 2016, the applicant had contacted the tribunal the day before the hearing and claimed that he would be attending his doctor that day. The certificate he provided to the tribunal on 6 April 2016 was dated 6 April 2016, which would indicate the claim that he made to the tribunal that he was seeing his doctor on 5 April 2016 was untrue.

18. The certificate does not provide any information as to why any medical condition he claimed to be suffering would not allow him to attend the hearing. Despite being advised by the tribunal officer that a medical certificate stating that he was simply “unfit for work or study” would not be satisfactory this was exactly what the medical certificate stated. The certificate was only valid for the day of 6 April 2016. It did not provide any description of what the claimed medical condition was or how it would prevent him from attending the hearing.

19. When the tribunal wrote to the applicant on 6 April 2016 with the postponed date of the hearing the tribunal again reminded the applicant that a generic medical certificate would not suffice.

20. The applicant has provided no evidence that he was suffering any medical condition on 22 April 2016 when the adjourned hearing date was listed. The tribunal does not accept that the applicant has not been able to provide such information to the tribunal if he had any. The applicant did not contact the tribunal by telephone either before or after the hearing to advise the tribunal that he was not able to attend. He has not provided any medical certificate which would indicate that he would not have been able to participate in the hearing on 22 April 2016. The first time the applicant contacted the tribunal after he failed to attend the second hearing arranged by the tribunal was on 2 May 2016 responding to the initial dismissal of the application by the tribunal.

21. The tribunal does not accept that the applicant was incapacitated for any reason which would have prevented him from attending the hearing on 22 April 2016 or providing evidence to the tribunal on that day.

22. Despite stating that the sponsor would attend the hearing in accordance with the request from the tribunal, there has been no communication from the sponsor to indicate that she was unable to attend the hearing. There has been no further information provided from the sponsor in support of the application. The applicant has provided no further information to the tribunal that has not already been considered by the department or had been considered by the tribunal before the application was listed the hearing.

23. The tribunal is not satisfied that there is any evidence which would justify the reinstatement of the application. The applicant has not provided any substantive evidence which would indicate that he was incapacitated in any way which would have prevented him or any witnesses from attending the hearing, the applicant had already been granted a postponement of the hearing and was aware that the hearing would proceed unless appropriate evidence was provided to justify any further postponement, the applicant failed to contact the tribunal immediately before or after the hearing to indicate that he was unable to attend for any reason and the applicant has failed to provide any further or new evidence in support of his application despite a request by the tribunal to do so. The tribunal finds that the application for reinstatement has no merit.

24. The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.

    DECISION

25. The Tribunal affirms the decision under review.

    Hugh Sanderson
    Member