Walnish Pty Ltd (Migration)

[2019] AATA 4652

Walnish Pty Ltd (Migration) [2019] AATA 4652 (14 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Walnish Pty Ltd

CASE NUMBER:  1727797

DIBP REFERENCE(S):  BCC2017/748357

MEMBER:Antonio Dronjic

DATE:14 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 14 October 2019 at 10:54am

CATCHWORDS
MIGRATION – approval of nominated position – no appearance at review hearing – review application dismissed – application for reinstatement – unspecified medical grounds – not appropriate to reinstate – dismissal confirmed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 362B(1A)(b), 362B(1C), 362B(1F), 362C(5)
Migration Regulations 1994 (Cth), r 5.19

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 to refuse to approve a nomination under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. On 26 September 2019 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. On 10 October 2019, the review applicant’s representative submitted an application for reinstatement of the application. The applicant’s representative wrote to the Tribunal that Ms Avinish Kaur Walia, who is a business manager of the nominating business, is ‘doing very bad on medical ground’ since her husband passed away in December 2018 , and that she can ‘get herself stable and attend the hearing if given few weeks’. No medical evidence was submitted with the reinstatement request.

5. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

6. The Tribunal considered the hearing postponement request of 20 September 2019, and responded to it by its letter of 23 September 2019, stating inter alia that:

   ‘Member is not prepared to grant an adjournment of the hearing scheduled for 26 September 2019. Having had regard to the limited information contained in the Medical Certificate, the presiding Member is not satisfied that the applicant demonstrated that she will be unfit to attend a hearing. In addition, the Tribunal notes that the applicant's husband passed away in December 2018.

   The Tribunal will carefully consider any additional certification by your treating doctor which outlines in detail the nature and history of your medical condition, your future prognosis and the reasons why you would be unable to appear before the Tribunal.

   The hearing will therefore proceed as set out below. Please note that all details about the hearing, as set out in the hearing invitation letter dated 19 June 2019 still apply.

   If you do not attend the scheduled hearing, we may make a decision on the review
   without taking any further action to allow or enable you to appear before us or may
   dismiss your application for review without any further consideration of the application or the information before us’…

7. The request for reinstatement is based on the same unspecified medical grounds. The Tribunal accepts that Ms Walia’s husband passed away In December 2018. However, the applicant has not provided additional medical evidence that would explain the reasons Ms Walia was unable to attend the scheduled hearing, nature and history of her medical condition and future prognosis.

8. The Tribunal is satisfied that the hearing invitations sent to the applicant on 19 June 2019 and 23 September 2019 complied with the relevant statutory requirements and that the applicant received the invitations. The Tribunal’s records indicate that the invitations were successfully transmitted to the applicant’s nominated email address.

9. The Tribunal notes that both letters contain the following advice: ‘If you are not able to participate in this hearing you should advise us as soon as possible.  Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment.  If we do not advise you that an adjournment has been granted, you must assume the hearing will go ahead.  If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss the application for review without any further consideration of the application or the information before us;’

10. The hearing invitation sent requested the applicant to confirm within 7 days whether he would attend the hearing or not. On 26 September 2019, the applicant’s representative responded to the hearing invitation indicating that the nominee (who is not a party in this review application) will attend the hearing and that neither the company’s authorised person nor the representative will attend the scheduled hearing.

11. The Tribunal is satisfied the applicant was validly notified of the hearing on 26 September 2019 and was aware of the time and date of the hearing. The Tribunal considers that the applicant has not provided reasonable explanation for its failure to appear. The hearing invitation clearly stated that the Tribunal might dismiss the application if the applicant did not attend the scheduled hearing.

12. The Tribunal is satisfied that s.362B(1C) allows the Tribunal to reinstate the review application if ‘it considers it appropriate to do so.’  Having carefully considered the applicant’s request, and the circumstances surrounding the application and the applicant’s non-appearance, as far as they can be ascertained, and for the reasons given above, the Tribunal is not satisfied that it is appropriate to reinstate the application.

13. Accordingly, the decision to dismiss the application is confirmed and it follows that the decision under review is taken to be affirmed pursuant to s.362B(1F).

    DECISION

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

    Antonio Dronjic
    Member