1932296 (Refugee)

[2024] AATA 4256

1932296 (Refugee) [2024] AATA 4256 (8 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Umanga Oberoi (MARN: 0850042)

CASE NUMBER:  1932296

COUNTRY OF REFERENCE:                   India

MEMBER:Khanh Hoang

DATE:8 October 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 08 October 2024 at 10:15am

CATCHWORDS
REFUGEE – protection visa – India – no appearance at hearing – application for review dismissed – application for reinstatement made – mental health – doctor’s letter inadequately explanatory – applicant’s lack of engagement with review process – application not reinstated – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 426A(1A)(b), (1C), 426B(5)

CASE

Singh v MIBP [2018] FCAFC 184; 266 FCR 459

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 decisions made by a delegate of the Minister for Home Affairs on 17 October 2019 to refuse to grant the visa applicants protection visas under the Migration Act 1958 (Cth) (the Act).

2. On 20 September 2024 the Tribunal dismissed the application under s 426A(1A)(b) of the Act as the applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing. The Tribunal made its decision at 2.28pm on that day.

3. At 2.37pm on 20 September 2024, the Tribunal received, via email, a request from the applicant’s representative to reschedule the hearing. It was acknowledged that the applicant did not attend the hearing when it was scheduled.

4. The request stated that the representative ‘has not heard from the applicants for sometime and today I received a letter from doctor that her health condition is not very good’. The representative attached a supporting letter from [Dr A], dated 11 September 2024. The Tribunal did not consider the request to reschedule the hearing, having already made a decision to dismiss the matter.

5. The applicants were 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 applicants were 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.

6. The applicants, through their representative, 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.

7. In their request for reinstatement, [the first applicant] provided a letter to the Tribunal, which contained the following:

   I would further like to inform you that I am suffering from poor mental health from some time; I am suffering from Bipolar Affective Disorder Schizophrenia. Due to this illness I experience unusual and severe mood changes. I am experiencing distinct episodes of anxiety and depression (My Doctors report is attached herewith) during these days. As the time I was informed of the hearing, I was not in the state to respond or attend hearing.

8. The representative reattached the supporting letter from [Dr A] in support of reinstatement. I have considered that letter, which provides as follows:

   I write this letter in support of [the first applicant], aged [Age], whom I consulted today. Written below our list of her medical conditions, as you might notice she struggles with severe bipolar affective disorder, has schizophrenia needing intensive help and support, because of present these conditions she is unable to access any of these support facilities which are available but unfortunately out of bounds for her because of severe financial constraints as she is unable to get any gainful employment unless and until her condition is treated I would be very grateful if you would help out with her application to gain citizenship.

   Past history

Date	Condition – comment
Bipolar affective disorder
Schizophrenia
2001	ECT
10 November 2020	B12 deficiency

1. In exercising the power under s 426A(1C), I note that the Tribunal must form an opinion or make an assessment on whether it is ‘appropriate’ to reinstate the application, having regard to all of the circumstances advanced to support reinstatement. The courts have held that, in such a context, the word ‘appropriate’ connotes two aspects: fitness and propriety.[1]

   [1] Singh v Minister for Immigration and Border Protection [2018] FCAFC 184; 266 FCR 459, per Colvin J at [27] – [30], with Kenny J and Bromberg JJ agreeing at [1] and [2], respectively.

2. I note that [Dr A]’s letter does not explain how, or why, the applicant’s medical conditions meant that she was unfit to participate in a hearing before the Tribunal. Given the letter was dated 11 September 2024 — and the hearing was scheduled for 20 September 2024 — the supporting letter does not provide reasons why [the first applicant] would be unfit to participate in a hearing before the Tribunal in the reasonably foreseeable future, including, and up to the day of the scheduled hearing.

3. I also note that while [Dr A]’s letter makes references to the applicant having bipolar affective disorder and schizophrenia, the letter provides no information as whether [Dr A] has a history of treating the applicant, or whether he, or someone else has diagnosed the applicant with having these conditions. Nor does the letter specify any date in relation to the conditions of bipolar affective disorder and schizophrenia, whereas dates are listed in respect of ‘ECT’ and ‘B12 deficiency’.

4. Similarly, the applicant’s letter dated 1 October 2024 does not explain how she was unfit to attend and participate in the hearing on the day it was scheduled. While the applicant refers to ‘experiencing distinct episodes of anxiety and depression these days’, this is not mentioned in [Dr A]’s letter of support.

5. In respect of propriety, I have also considered the applicant’s conduct with respect to progressing the review application. I have considered the representative’s email from 20 September 2024 which suggests that the applicants could not attend the hearing because she has not heard from them ‘for sometime’. In this respect, I note the applicants were given ample notice of the hearing, and the representative had ample opportunity to contact the Tribunal to advise that she has not heard from her clients prior to 20 September 2024. I note that the applicants have not engaged with the Tribunal prior to the initial dismissal notification being sent and there is a lack of any information provided to the Tribunal to support their review application to date.

6. In my view, the applicants have not provided satisfactory evidence to support the claim that [the first and second applicants] were unfit to attend and participate in the hearing before the Tribunal as scheduled, and I consider that no reasonable excuse for their non-attendance has been given.

7. Having regard to all the circumstances, I do not consider it appropriate to reinstate the application.

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

   DECISION

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

   Khanh Hoang
   Member