1919871 (Refugee)

[2024] ARTA 53

DECISION AND  

REASONS FOR DECISION

1919871 (Refugee) [2024] ARTA 53 (5 November 2024)

Respondent:  Minister for Home Affairs

Tribunal Number:  1910971

Tribunal:General Member M Oakman

Place:Sydney

Date:  5 November 2024

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

Statement made on 05 November 2024 at 9:47am

CATCHWORDS          
REFUGEE – protection visa – Malaysia – no appearance at hearing – application for review dismissed – application for reinstatement – reasonable and acceptable excuse for non-appearance – unable to contact previous representative – tribunal’s advice to attend hearing even if unprepared – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 368B(5), 426A(1A)(b)

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 August 2018 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 1 October 2024 the Tribunal dismissed the application under s 426A(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. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

4. The review 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). The review 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 day period would result in confirmation of the dismissal decision.

5. The review applicant applied for reinstatement of the application within 28 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

6. On 14 October 2024 the Tribunal received an email seeking reinstatement of the application. The email states as follows:

   “I hope this letter finds you well.

   I am writing to explain why I was unable to attend the appeal hearing on September 30, 2024. I
   sincerely apologize for my absence and hope to receive your understanding.

   First, on September 27, I notified the court via email that I would not be able to attend the
   hearing. The reason for this is that, despite my best efforts, I was unable to find a suitable lawyer
   to represent me. No lawyer was willing to take on my case. Additionally, a representative I had
   previously hired has become unreachable. I had paid him a considerable amount of money to
   help with my visa matters, but now I cannot locate him, nor do I know what specific documents
   or submissions he made on my behalf. This has caused me significant anxiety and confusion in
   recent times.

   The court requested stronger supporting documentation via email, but due to the representative's
   disappearance, I have been unable to obtain the necessary files. This situation has left me feeling
   helpless and under immense pressure, affecting my ability to manage the case effectively. I
   understand the inconvenience this has caused the court, and I deeply regret my absence once
   again.

   I respectfully ask the court to consider my circumstances and grant me another opportunity to
   address the matter.

   Thank you for taking time to read my letter. I sincerely hope for your understanding and assistance.”

7. The Tribunal notes the following:

   ·The material provided by the Department in relation to the review applicant’s protection visa application does not indicate she had a representative at any stage of that process.

   ·The review applicant did not indicate in her review application to the Tribunal that she had a representative.

   ·On 28 September 2021 the review applicant provided a form MR5 to the Tribunal appointing a representative / authorised recipient.

   ·On 27 February 2024 the review applicant provided a form MR5 to the Tribunal cancelling the appointment of her representative / authorised recipient.

   ·On 11 July 2024 the Tribunal sent an email to the review applicant advising that her matter had been allocated to a member and asked her for a copy of the Department’s decision record.

   ·On 20 August 2024 the Tribunal emailed the review applicant an invitation to a hearing listed for 30 September 2024.

   ·On 27 September 2024 (at 11:39am) the review applicant emailed the Tribunal stating:

   “I can't find the person who previously helped me with my case and no law firm is willing to take my case, which is making me anxious. I also can't find any way to get a response I’m also very frustrated and don't know what I should do.

   Given the current circumstances, I regret to inform you that I will be unable to attend the upcoming hearing. If necessary, I am willing to cooperate by providing information through alternative means or discussing any relevant matters with you.

   Thank you for your understanding and patience in this matter. Please feel free to contact me if you require further information or have any questions.”

   ·On 27 September 2024 (at 11:58am) the Tribunal emailed the review applicant stating:

   “I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.

   It is essential for your review application that you attend your hearing, even if you believe you are unprepared. Please note the line contained in the hearing invitation sent to you: "we have considered the material before us, but we are unable to make a favourable decision on this information alone."

   If you do not attend the hearing, the Tribunal will not be able to make a decision in your favour.

   However, it is up to you whether you wish to attend, please confirm whether you will or will not be attending as soon as possible.

   If you have any questions, please contact us immediately …”

   ·On 30 September 2024 the review applicant did not attend the listed hearing with the Tribunal without any further explanation or contact until her reinstatement request of 14 October 2024.   

8. The review applicant knew from 27 February 2024 that she no longer had a representative. She also knew from 11 July 2024 that the matter had been allocated to a member and then received a hearing invitation (for 30 September 2024) on 20 August 2024. In my view, the review applicant had ample opportunity to engage another representative prior to the 30 September 2024 hearing. Additionally, when she notified the Tribunal on 27 September 2024 that she would not be able to attend because of her position in relation to her former representative, getting documents, and not be able to find new representation, which was making her anxious and frustrated, the Tribunal provided a quick response urging her to attend the hearing even if she felt unprepared. Given those factors, I do not accept that there is a reasonable and acceptable excuse for the applicant failing to attend the hearing listed for 30 September 2024. I do not consider it appropriate to reinstate the application.

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

   DECISION

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