1918411 (Refugee) - [2025] ARTA 829

1918411 (REFUGEE) [2025] ARTA 829 (7 MARCH 2025)
DECISION AND
REASONS FOR DECISION
CONFIRMATION OF DISMISSAL DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  1918411

Tribunal:General Member D. Gordon
Place:Melbourne
Date:7 March 2025
Decision:The Tribunal confirms the decision to dismiss the application.

Statement made on 07 March 2025 at 12:12pm
CATCHWORDS
REFUGEE – protection visa – India – request for adjournment of hearing and medical certificate provided – no adjournment and offer of audio-visual hearing – no appearance at hearing and application for review dismissed – application for reinstatement and further medical certificate provided – unclear and insufficient terms of certificates – application for reinstatement denied – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 368B(5)
Administrative Review Tribunal Act 2024 (Cth), s 9
CASES
Mangat v MICMSMA [2021] FCCA 294
MIBP v SZVFW [2018] HCA 30
Minister for Immigration v Li [2013] HCA 18
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 June 2019 to refuse to grant the review applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).
INITIAL DISMISSAL FOR NON-APPEARANCE AT HEARING
The review applicant (the applicant) was notified to appear before the Tribunal on 28 February 2025 at 1pm for their hearing.
On 27 February 2025, being a day before the hearing, the applicant emailed the Tribunal at 11.20am requesting an adjournment and provided a medical certificate dated the same day.
The Tribunal upon examining the medical certificate dated 27 February 2025 found that the medical certificate certified [the applicant] as being “unfit for work”. However, the applicant is a child and would not be working or of working age. The medical certificate of 27 February 2025 was not addressed to the Tribunal, did not refer to the Tribunal hearing or state that the applicant would not be able to attend the Tribunal hearing.
In Mangat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Court set out the importance of medical information in support of adjournments to be clearly particularised including that due to the medical event the attendance and participation at a hearing would not be possible.[1]
[1] [2021] FCCA 294 at [14].
The Tribunal did not accept the medical certificate of 27 February 2025 and by email on the morning of 28 February 2025 at 9.04 am informed the applicant that the hearing would proceed at 1pm. The Tribunal also informed the applicant that an audio-video hearing could also be arranged if the applicant replied to the Tribunal by 11am seeking an audio-video hearing.
The applicant did not respond to the Tribunal email of 28 February 2025 refusing the adjournment request and to the offer of an audio-video hearing.
The applicant did not appear before the Tribunal for their hearing which was set down for 1pm on 28 February 2025.
Furthermore, as a matter of procedural fairness the Tribunal waited a further half an hour at the hearing time till 1.30pm, however the applicant did not appear.
The Tribunal dismissed the application for review for review on the basis of the applicant failing to appear for their hearing which was set down for 1pm on 28 February 2025.
The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision, in accordance with s 368B(5) of the Act.
The applicant was advised that reinstatement of the application could be sought within 28 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 28 days period would result in confirmation of the dismissal decision.
CONSIDERATION OF REINSTATEMENT APPLICATION
The review applicant applied for reinstatement of the application on 6 March 2025 being within 28 days after receiving notice of the decision.
For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.
The applicant in their application for reinstatement provided a further medical certificate dated 5 March 2025.
The Tribunal has significant concerns about this further medical certificate dated 5 March 2025.
Initially, in the 27 February 2025 medical certificate, a medical practitioner certifies [the applicant] as ‘unfit for work’.
However, in contradiction, in the medical certificate of 5 March 2025, a medical practitioner now certifies [the applicant] as having a medical condition being type 2 diabetes and that on the 27 February 2025 his sugar was high, and he had back pain.
Equally concerning is that the medical certificate of 5 March 2025 further states that the opinion of the doctor is based on ‘factual information’ provided by [the applicant] and ‘his notes’.
Notably the doctor does not say “my notes”. The doctor says “his notes”.
However, the medical certificate of 27 February 2025 did not state that [the applicant] had a medical condition being type 2 diabetes and that on the 27 February 2025 his sugar was high, and that he had back pain.
Furthermore, the medical certificate of 5 March 2025 now also is explicitly crouched in a limitation as the doctor states that their medical certificate is based on ‘factual information’ provided by [the applicant] and ‘his notes’.
Notably a copy of [the applicant]’s blood glucose/sugar reading for 27 February 2025 is not provided to the Tribunal. This information is saved and stored on such devices.
By the doctor explicitly providing such a limitation in their medical certificate of 5 March 2025, the Tribunal draws the inference that the doctor did not examine [the applicant] or conduct any medical tests whether on 27 February 2025 or on 5 March 2025 or nearby dates. There is no clarity as to what the doctor means by ‘his notes’ and what ‘factual information’ [the applicant] provided to the doctor.
The doctor’s express limitation in the medical certificate of 5 March 2025 suggests to the Tribunal that the doctor is certifying what has been told to the doctor by [the applicant] and that no independent opinion or assessment has been undertaken by the doctor themselves to determine whether he was unfit to attend the hearing on 28 February 2025.
Although the medical certificate of 5 March 2025 is on paper and meets the visible hallmarks of a medical certificate, its contents as noted above do not satisfy the Tribunal that [the applicant] was unfit to attend the hearing on 28 February 2025 due to medical reasons.
No reason is also provided as to why the applicant could not take up the audio-video hearing offered to them by the Tribunal on the morning of 28 February 2025.
THE RIGHT TO A HEARING AND ITS LOSS
The right to a hearing is a fundamental right in our legal system, often expressed by the maxim audi alteram partem. It is not to be displaced lightly and deserves proper consideration.
The loss of the right to a hearing requires an exercise of discretion which must be subject to and constrained by legal reasonableness per Minister for Immigration v Li.[2]
[2] [2013] HCA 18 at [105].
In context of the Administrative Review Tribunal Act 2024, the statutory objectives as set out in its s 9 provide for an independent mechanism of merits review that is fair and just and ensures that applications are resolved as quickly with as little formality and expense as the matter permits.
In Minister for Immigration & Border Protection v SZVFW, the High Court noted with respect to the previous tribunal that the hearing invitation and dismissal for non-appearance procedure was a reflection of its statutory objective for a fair, just, economical, quick review.[3]
[3] [2018] HCA 30 at [68]-[70].
ANALYSIS
The review applicant was validly invited to the review hearing of 28 February 2025. The invitation to attend the hearing clearly stated the consequences of a failure to attend.
The review applicant submitted a medical certificate dated 27 February 2025 which was not suitable and not accepted by the Tribunal. It certified [the applicant] as ‘unfit for work’ and provided no further details.
The review applicant provided a further medical certificate dated 5 March 2025 as part of his reinstatement application which is also not suitable and is not accepted by the Tribunal. It certified [the applicant] based on his information and notes without an independent medical assessment by the doctor. The doctor also explicitly stated this limitation to their medical certificate. A copy of blood glucose/sugar readings have not been provided.
The Tribunal cannot be satisfied where the doctor explicitly limited their medical certificate of 5 March 2025 in such a manner to note that it was not based on their independent medical opinion but based on ‘factual information’ supplied by [the applicant] and ‘his notes’.
The doctor’s express limitation stated in the medical certificate of 5 March 2025 suggests that the doctor did not wish to provide their own medical opinion where they had not conducted the required medical assessment or formed their own opinion of [the applicant]. The Tribunal infers the doctor was well aware of providing a medical certificate to an institution such as the Tribunal without having a proper medical basis for doing so.
The Tribunal is satisfied that it is legally reasonable to deny the request for reinstatement and dismiss the application for review.
The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.
DECISION
The Tribunal confirms the decision to dismiss the application.