VELDUTI (Migration)

[2018] AATA 1102

VELDUTI (Migration) [2018] AATA 1102 (18 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jeevan Theja VELDUTI

CASE NUMBER:  1617176

DIBP REFERENCE(S):  BCC2016/2565145

MEMBER:Mark Bishop

DATE:18 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 18 April 2018 at 5.50pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 500 visa – Practice and Procedure – Review applicant was notified of the dismissal decision – Applied for reinstatement of the application within time – Agent provided enrolment status materials – Applicant did not attend the hearing – Medical certificate inadequate evidence

LEGISLATION
Administrative Appeals Tribunal Act 1975 s 18B
Migration Act 1958, ss 360, 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 27 September 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 5 April 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 5 March 2018 the Tribunal wrote to the applicant and invited the applicant to attend a review hearing at 9.30am on 3 April 2018.

6. The Tribunal wrote to the applicant on 5 March 2018 requesting the applicant provide the following information (1) A copy of a current Certificate of Enrolment (COE) (2) Documents that showed the applicant was currently enrolled in a course (3) Documents that show past studies in Australia, attendance certificates, academic transcripts and certificates of completion and (4) An explanation of any gaps in enrolments and relevant documentary evidence.

7. The applicant did not provide any of the material as requested.

8. On 13 March 2018 the applicant advised the Tribunal he would attend the hearing.

9. On 3 April 2018 the hearing proceeded as scheduled.

10. On 3 April 2018 the Migration Agent (MA) for the applicant attended the Tribunal. He advised hearing staff the applicant may not be attending the hearing. Immediately prior to the hearing the MA for the applicant advised the Tribunal he was having difficulty contacting the applicant. He further advised he had received an email from Mr Velduti (the applicant) advising he would not be attending the hearing.

11. The presiding member advised the MA the scheduled hearing would proceed. The applicant did not attend the hearing. At 9.45am the Tribunal ended the hearing without the applicant attending the hearing.

12. On 17 April 2018 and 18 April 2018 the MA for the applicant lodged the following documents in support of a request for reinstatement of the application:

    ·     Copy of email forwarded 4.53pm 3 April 2018 to the Tribunal advising of hearing at 9.30am 3 April 2018. There were no attachments to the email;

    ·     Copy of unofficial academic transcript of applicant dated 28 July 2016 relating to enrolments at Central Queensland University in 2014/2015;

    ·     Confirmation of Enrolment dated 14 August 2017 in the name of the applicant;

    ·     Copy of email from the applicant sent to the MA for the applicant advising he may not attend the scheduled hearing;

    ·     Document headed “Explanation” from the applicant that advised as follows:

    o   Request for reinstatement on the grounds the “applicant claims he was sick and not in a position to attend the hearing”. The applicant advised he provided the medical certificate and it was submitted to the Tribunal at late stage;

    o   The applicant requested reinstatement by considering his circumstances as exceptional circumstances;

    o   The MA gave his views as to the genuineness of the medical certificate;

    o   The MA submitted the applicant had failed the Tribunal by not attending the hearing. The MA agreed the invitation to attend was in conformity with s.360 of the Act. The MA submitted the Tribunal could exercise its discretion under s.362B(1A) of the Act to proceed to make a decision without further consideration of the application. The applicant submitted the Tribunal is entitled to exercise this discretion under s.362B(1)(b) of the Act when the applicant failed to attend the hearing;

    o   The MA submitted the Tribunal has taken all efforts to allow the applicant to attend the hearing. The MA submitted there was no dispute the applicant failed to engage with the Tribunal, as he was requested to do so, with any documentary material that may assist his case;

    o   The MA submitted both he and the applicant were aware of the hearing schedule and the hearing invitation had been signed and sent in time;

    o   The MA submitted the applicant had been de-railed from his Master’s program for compelling reasons and he could not get admission back into the program and accordingly he should be accepted as a genuine applicant.

13. The medical certificate provided by the MA for the applicant was dated 3 April 2018 and received by the Tribunal shortly prior to close of business on the same day. This was after the Tribunal had proceeded with the scheduled hearing and ended the hearing without an appearance by the applicant. The applicant failed to provide reasonable explanation for such non-attendance. This was after the interim decision was issued at 1.07pm on 3 April 2018.

14. The medical certificate advised “Mr Jeevan Velduti has a medical condition and will be unfit for work from 03/04/2018 to 04/04/2018 inclusive”.

15. The medical certificate did not contain details of the medical condition or its severity. It did not advise the applicant was unable to attend a Tribunal hearing of short duration. It did not advise the applicant was unable to travel by normal means. It did not state the applicant was unable to attend and give evidence. It did not advise whether the medical practitioner considered the applicant could attend a hearing and give oral evidence.

16. The President of the Administrative Appeals Tribunal issued Practice Direction Migration and Refugee Matters under s.18B of the Administrative Appeals Tribunal Act 1975 for Migration and Refugee Matters on 15 June 2015.

17. Clause 1.1 says this Direction applies to cases that are dealt with in the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT). The Direction says Part 1 applies to applicants and representatives in all cases.

18. Clause 7.3 and clause 7.4 of the Direction are reproduced hereunder:

    Seeking an adjournment

    7.3 If you seek an adjournment of a scheduled hearing, you must contact us immediately and state the reasons why the date is unsuitable.

    7.4 If you seek an adjournment of the hearing on medical grounds, you must contact us as soon as possible and must provide a certificate from a medical practitioner certifying that you are unable to attend and give oral evidence, and indicating when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you are a representative acting on behalf of an applicant, you must submit such medical certificates no later than two business days before the scheduled hearing day (where available).

19. The Tribunal notes cl.7.4 above outlines a number of steps an applicant or his representative must comply with when seeking an adjournment. This application is an application for reinstatement of a review application for failure to attend a scheduled hearing and failure to give adequate explanation for such failure. In those circumstances a request for adjournment in essence seeks the same outcome: rescheduling of the review application to another time.

20. The Tribunal is of the view a medical certificate as outlined in paragraph 14 is inadequate. The applicant has not provided the Tribunal with any specific evidence confirming he was unable to attend the scheduled hearing. He did not advise his MA of his alleged illness, its severity, his inability to attend a hearing and when he would be sufficiently healthy to attend a hearing at any time prior to the hearing. He only advised his MA he would not attend the hearing (see paragraph 10 above).

21. The Tribunal has considered the “Explanation” forwarded on behalf of the applicant. This submission does not offer any evidence to support the narrative outlined by the MA on behalf of the applicant. The submission makes it clear both the MA and the applicant were fully aware of all the circumstances leading up the scheduled hearing. The applicant decided not to attend and advised his MA of that decision. The MA informed the Tribunal of that decision and advised further he had been unable to contact the applicant. 

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

    DECISION

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

    Mark Bishop
    Member