SINGH (MIGRATION)

[2024] ARTA 242

SINGH (MIGRATION) [2024] ARTA 242 (16 DECEMBER 2024)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Amarjeet Singh

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2113422

Tribunal:Senior Member A. Murphy

Place:Melbourne

Date:  16 December 2024

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

Senior Member A Murphy

Statement made on 16 December 2024 at 8:52 AM

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – no appearance at hearing – application for review dismissed – application for reinstatement made – applicant in home country caring for elderly parents – video hearing scheduled – applicant’s preference to attend hearing in person – no visa currently held – dismissal confirmed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 99, 102(9), 368B(5)
Administrative Review Tribunal Act 1994 (Cth), s 9

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 September 2021 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (Cth) (the Act).

2. On 2 October 2021, the review applicant applied to the Administrative Appeals Tribunal (the AAT) for merits review of the delegate’s decision. On 14 October 2024, the AAT was replaced by the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal and the Tribunal has the authority to continue and finalise any aspect of the review not already completed by the AAT.[1]

   [1] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (No. 38, 2024), Schedule 16, Part 5, Item 24; Schedule 16, Part 6, Item 26.

3. On 15 November 2024 the Tribunal dismissed the application under s 99 of the Administrative Review Tribunal Act 2024 (Cth) as the review applicant did not appear before it at the time and date of the scheduled hearing.

4. The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision, in accordance with s 368B(5). The review applicant applied for reinstatement of the application within 28 days after receiving notice of the decision. For the following reasons, the Tribunal does not consider it appropriate to reinstate the application:

   ·In November 2022, a Tribunal officer wrote to the applicant advising him that its records showed that he had departed Australia and invited him to confirm that he wished to continue the review and provide updated contact details. The applicant confirmed that he was residing in India and provided the Tribunal with an updated phone number;

   ·The applicant was invited to attend a hearing on 15 November 2024 which was to take place by Microsoft Teams video conference;

   ·On 1 November 2024 the applicant responded to the hearing invitation by stating that while he appreciated his case was ready for hearing, he was living in India and looking after his elderly parents so he was unable to join the video hearing. He noted that he did not have a visa allowing him to return to Australia and requested that such a visa be granted by the Department so that he could return to Australia for the hearing of his review. He also noted that he had previously provided the Department with evidence in support of the visa application;

   ·On 4 November 2024, a Tribunal officer advised the applicant that the Tribunal was unable to arrange the grant of a visa enabling him to return to Australia for the hearing and that for this reason the hearing was scheduled to take place by Microsoft Teams video. That correspondence referred him to the hearing invitation and noted that if he did not attend the scheduled hearing his case may be dismissed by the Tribunal or a decision made on the information available to the Tribunal;

   ·The applicant did not respond to that correspondence or join the scheduled video hearing. A casenote records that the hearing attendant attempted to contact the applicant on both the phone number he provided in the review application and the phone number that he later provided to the Tribunal for his residence in India. Those phone calls were not answered and the Tribunal proceeded to dismiss the application for review pursuant to s 99 of the Administrative Review Tribunal Act 2024 (Cth);

   ·The applicant was notified that his application for review had been dismissed and advised of his right to apply to the Tribunal for reinstatement. The applicant sought reinstatement of his application in an email dated 5 December 2024, again advising that it was hard for him to participate in a video hearing because of his father’s health issues; that he had asked the department to grant him a visa to return to Australia for the hearing and that he had already sent everything required to the department.

5. The Tribunal appreciates that the applicant would prefer to attend a hearing in person, rather than one conducted by video conference. However the matter was listed for a video hearing because the applicant has advised the Tribunal that he is resident in India and he does not hold a visa that would allow him to return to Australia for any future hearing.

6. He does not suggest that he would participate in any future video hearing if the review application was reinstated, rather he continues to seek the grant of a visa that would allow him to return to Australia for the hearing. He does not identify any visa class for which he might be eligible and he does not suggest that he has made any formal application for any class of visa to the Department.

7. In considering whether it is appropriate to reinstate the review application pursuant to s 102(9), I have had regard to the Tribunal's statutory objective in s 9 of the ART Act which requires the Tribunal to pursue the objective of providing an independent mechanism of review that is both fair and just and that ensures applications are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits. Section 9 also requires the Tribunal to provide a mechanism of review that is accessible and responsive to the diverse needs of the parties, that improves the transparency and quality of decision making and promotes public trust and confidence in the Tribunal.

8. In this case I consider that the scheduled video hearing provided the applicant with a meaningful opportunity to participate in a hearing in circumstances where it is not possible for him to attend an in-person hearing in Australia. The hearing invitation dated 25 October 2024 and the Tribunal’s correspondence dated 4 November 2024 advised him of the potential consequences if he did not appear at the scheduled the hearing. In circumstances where the applicant has indicated that he will not participate in a video hearing but holds no visa that would allow him to return to Australia for an in-person hearing, the Tribunal does not consider it appropriate to reinstate the review application.

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

   DECISION

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