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1810208 (Refugee) [2024] AATA  1692  (11 April 2024)

Last Updated: 18 June 2024

1810208 (Refugee)  [2024] AATA 1692  (11 April 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1810208

HOME AFFAIRS REFERENCE(S): CLF2018/11567

COUNTRY OF REFERENCE: Malaysia

MEMBER: Jessica Henderson

DATE: 11 April 2024

PLACE OF DECISION: Perth

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


Statement made on 11 April 2024 at 10:24am

CATCHWORDS

REFUGEE – protection visa – Malaysia – dismissal decision – failure to attend Tribunal hearing – application for reinstatement of the application – dismissal confirmed – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 426A, 426B

CASES
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

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 Home Affairs on 5 April 2018 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).
2. On 18 March 2024 the Tribunal dismissed the application under s 426A(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 426B(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. On 22 March 2024 the applicant sent the Tribunal an email which stated that the reason for his non-appearance was that his “car was happened accident when on the way to the court on 12:30pm 18 March 2024.” He requested reinstatement of his application. No further details or evidence were contained in or attached to the email.
5. As the applicant applied for reinstatement of the application within 14 days after receiving notice of the decision the Tribunal must consider the reasons set out by the applicant for his failure to appear, whether the applicant has a reasonable or acceptable excuse for their absence and their conduct generally in progressing their application for review: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479 at [47]–[48].
6. On 22 March 2024 the Tribunal wrote to the applicant requesting evidence of the accident, including time-stamped photographs of the damage, any report made to ICWA, any insurance claim, any police report, a statutory declaration setting out where, when and how the accident occurred, and the details of any passengers/other drivers/witnesses. The applicant was advised that his statement should also set out why he didn’t call the Tribunal on the day of the hearing and, if he was injured in the accident, details of any medical treatment. The letter set out that any response should be provided to the AAT, in writing, by 2 April 2024.
7. The Tribunal has not received a response.
8. The reason given by the applicant for his failure to appear is vague. It is not clear whether he had an accident whilst driving, whether his car was damaged in an accident whilst stationary, or whether his car was involved in an accident whilst under third party control. The applicant has not provided any evidence that there was an accident involving his car on the day of the hearing, not even his own sworn witness statement. The Tribunal is not persuaded that an accident occurred.
9. Even if the Tribunal accepted that some sort of accident involving the applicant’s car occurred, it would still not be persuaded that it comprised a reasonable excuse for non-attendance. An accident involving a car could be a reasonable or acceptable excuse for not attending a hearing, in many circumstances. However, an accident might not be a reasonable or acceptable excuse for not attending a hearing in many circumstances. At one extreme, the applicant might have been in a catastrophic accident whilst driving his car, which caused him to be hospitalised. At the other extreme, the applicant might have come out of a shop to find that his car had a minor dent and have decided that it was too hard to come in for a hearing as a result of his bad mood. Without more information, it is impossible for the Tribunal to form a view as to whether the applicant has a reasonable excuse for his non-attendance.
10. The applicant has been consistently unresponsive to the Tribunal’s enquiries from the outset of the application. On 30 November 2023 the Tribunal sent to the applicant an email notifying him that his matter was about to be constituted to a Tribunal Member. The email contained a link to a pre-hearing information form, which the applicant was asked to complete within 7 days of receiving the email. The applicant did not respond.
11. On 22 February 2024 the applicant was sent the hearing invitation which attached a form titled “Response to hearing invitation” which the applicant was asked to complete within 7 days of receipt of the email. The applicant did not respond.
12. The applicant did not respond to the Tribunal’s request for further information about the alleged accident to the applicant’s car.
13. The applicant did not provide any evidence or statement to the Tribunal in support of his claims prior to or after the hearing.
14. The Tribunal finds that the applicant’s conduct in progressing his application has been dilatory.
15. The Tribunal is not persuaded that an accident occurred on the day of the hearing. If it did, there is no statement or evidence about the nature of the accident, the impact on the applicant, or why the applicant did not alert the Tribunal to the accident on the day or days immediately following its occurrence. The Tribunal is not persuaded that the applicant had a reasonable or acceptable excuse for his absence.
16. The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.

DECISION

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

Jessica Henderson
Member