THUMU (Migration)

[2018] AATA 1104

THUMU (Migration) [2018] AATA 1104 (17 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SANTOSHREDDY THUMU

CASE NUMBER:  1618088

DIBP REFERENCE(S):  BCC2016/2875174

MEMBERS:M. Jackson (Presiding)

P. Wood

DATE:17 April 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 17 April 2018 at 1:57pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 500 (Student) – Applied for reinstatement of the application within the timeframe – Applicant did not attend hearing – Reasonable consideration towards a postponement – No convincing reason as to why the applicant could not return to Australia

LEGISLATION
Migration Act 1958, 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 26 October 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. On 28 March 2018 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 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 3 November 2016 the Tribunal acknowledged the application for review of a refusal to grant a Student (Temporary) (Class TU) visa. In its acknowledgement the Tribunal advised the applicant to advise it immediately if his personal circumstances changed in a manner that was relevant to the review of the decision.

6. On 9 March 2018 the Tribunal invited the applicant to attend a hearing on 28 March 2018 and requested a response to the invitation within seven (7) days.

7. On 18 March 2018, nine (9) days later, the applicant requested a postponement of his hearing until after 26 April 2018 because, he stated, he was in India visiting his mother who was in bad health. He stated that he was unable to return to Australia until 25 April, five weeks later. No supporting evidence for his request, such as medical evidence relating to his mother’s illness, or related arrangements for travel to and from Australia, was submitted, nonetheless the Tribunal carefully considered the applicant’s request.

8. On 20 March 2018, the Tribunal invited the applicant to attend the hearing by phone and to provide a phone number on which he could be reached during the hearing.

9. On 21 March 2018, the applicant wrote to the Tribunal, again asking for a postponement, stating that his mother was ill and stating that he had left documents in Australia and that he was very busy with the matter of his mother’s illness, and he requested that the Tribunal reconsider its decision to proceed with the hearing.

10. On 21 March 2018, the Tribunal wrote to the applicant, advising that the postponement request had been considered again, but that the hearing would not be postponed, and inviting him to attend the hearing by phone. The applicant did not respond to the invitation and did not attend the hearing on 28 March.

11. On 28 March 2018, the Tribunal, in accordance with the Act, notified the applicant of its decision to dismiss his application and advised the applicant that he could apply for reinstatement by 11 April 2018. The applicant was advised that in such circumstances he should set out why he failed to appear at the hearing and to provide any other information he wanted the Tribunal to take into consideration when deciding whether his reinstatement application should be granted.

12. On 10 April the applicant wrote to the Tribunal, again explaining that he was in India as his mother “was hospitalised in serious condition”. The applicant provided no further information other than to state, in relation to his non-appearance:  “all suddenly I came to India that’s why I couldn’t able to attend my hearing”. The applicant again requested a month to return to Australia and submit documents.

13. The Tribunal notes the applicant in the period prior to the hearing was twice afforded reasonable consideration towards a postponement and was twice refused, but on both occasions he was invited to attend the hearing by phone. The Tribunal notes that the applicant did not accept the Tribunal’s invitation to attend the hearing by phone, did not advise the Tribunal that he would not be attending by phone, and subsequently did not attend.

14. The Tribunal further notes that the applicant, in response to the hearing invitation did not provide supporting evidence for his repeated requests for postponement, other than to repeat an unsupported claim that he had gone to India due to his mother’s health and to state that, if given a month in which to return to Australia, he would be in a position to submit documents for review.

15. The Tribunal finds the applicant chose not to attend the review hearing, despite being twice offered an opportunity to do so by phone, and did not provide persuasive reasons why he could not do so. Further, he did not provide convincing evidence as to why he needed to remain in India and why he would not be in a position return to Australia for another month.

16. For the reasons above, the Tribunal considers it not appropriate to reinstate the application.

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

    DECISION

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

    M. Jackson
    Member

    
    

    P. Wood
    Senior Member