1922750 (Refugee) - [2024] ARTA 692

1922750 (REFUGEE) [2024] ARTA 692 (29 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  1922750

Tribunal:General Member D Gordon
Place:Melbourne
Date: 29 November 2024
Decision:The Tribunal confirms the decision to dismiss the application.

Statement made on 29 November 2024 at 9:07am
CATCHWORDS

REFUGEE – Protection visa –Taiwan – applicant failed to attend tribunal hearing – seeking repeated adjournments without proper supporting material – no medical certificate has been provided – three opportunities for attending the hearing – decision to dismiss the application confirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth) s 99
Migration Act 1958, s 368
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 15 August 2019 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).
DISMISSAL FOR NON-APPEARANCE AT HEARING
The review applicant was notified that they were invited to appear before the Tribunal on 30 October 2024 at 12.30pm for their hearing.
The review applicant did not appear before the Tribunal on 30 October 2024 at 12.30pm.
On 30 October 2024 at 3.24pm the Tribunal dismissed the application under s 99 of the Administrative Review Tribunal Act 2024 (Cth) as the review applicant did not appear before it at the time and date of the scheduled hearing.
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) of the Act. 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 days period would result in confirmation of the dismissal decision.
CONSIDERATION OF REINSTATEMENT APPLICATION
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.
CHRONOLOGY OF ADJOURNMENTS
To understand the initial dismissal for non-appearance on 30 October 2024 and relevant background to the matter, the Tribunal sets out a chronology of the adjournments. The Tribunal adopts the chronology of the adjournments from paragraphs 2-14 of the Interim Dismissal Decision in this matter dated 30 October 2024 as follows.
Initially this matter was set down for hearing on 3 July 2024. This was cancelled by the Tribunal due to the hearing room not being available.
The matter was then set down for hearing on 26 July 2024. The review applicant sought an adjournment on the basis that he could obtain no further leave from his employer as he had already taken time off to attend to his partner’s pregnancy health check-up. The Tribunal granted this adjournment.
The matter was then set down for hearing on 23 August 2024. Two days before on 21 August 2024 the review applicant sent an email stating that his mother was visiting him and she had suffered a serious injury. The review applicant attached a graphic picture of an open head wound and no other documents such as a medical certificate or other confirmation that the picture was of his mother. Notably and coincidentally the review applicant’s mother’s follow-up appointment was on the 23 August 2024, the day of the hearing. However, in fairness to the review applicant and in light of the graphic picture, the Tribunal gave the applicant the benefit of the doubt and adjourned the matter.
This coincidence of medical appointments on hearing days is disconcerting as the review applicant initially had a hearing at the Queensland Registry on 9 May 2024 which he received an adjournment for on the basis that he had a workplace injury and his medical appointment was also coincidentally on 9 May 2024.
The matter was then set down for hearing on 30 October 2024. Again, two days before on the evening of 28 October 2024 after Tribunal business hours the review applicant sent an email attaching the same graphic picture he had previously sent on 21 August 2024 and sought an adjournment on the same basis.
The hearing adjournment request of 28 October 2024 has caused the Tribunal significant concern. The review applicant knew he had a hearing on 30 October 2024 but sought an adjournment very late on the same grounds as his request of 21 August 2024. Furthermore on this occasion he still had no medical documentation or evidence that the picture was of his mother or that he was required to care for his mother and could not attend the hearing on 30 October 2024.
Notably the Tribunal on 26 August 2024 had written to the review applicant offering an Audio Video remote hearing due to the adjournment of the 23 August 2024 hearing. The review applicant had not replied to this offer.
Notably on 29 October 2024 the Tribunal made urgent contact with the review applicant to advise him that the adjournment was refused as there was no medical documentation and that the Tribunal was offering the review applicant the opportunity to attend the hearing of 30 October 2024 via audio video remotely.
The review applicant on the day of the hearing being the morning of 30 October 2024 advised that he would not be available for an audio video hearing as he was not sure an audio video hearing would work on his mobile phone.
The Tribunal finds that the review applicant sought the adjournment on 28 October 2024 unreasonably late when there was ample opportunity to seek the adjournment much earlier.
The Tribunal finds that the review applicant ignored the Tribunal’s offer of 26 August 2024 to hold an audio video hearing for the hearing of 30 October 2024.
The Tribunal finds that the reasons advanced on the 28 October 2024 by the review applicant are not reasonable for an adjournment. Those reasons were accepted by the Tribunal on the 21 August 2024 as the review applicant gave the impression that an urgent and serious medical event had occurred by attaching a graphic picture of his mother. However to use that same reason again on 28 October 2024 without anything further is not reasonable and cannot be accepted by the Tribunal.
The Tribunal also notes that in his email of 28 October 2024 the review applicant states he will be returning to Taiwan on [date December] 2024 which casts some doubt on the bona fides of his protection claim.
REVIEW APPLICANT’S SUBMISSIONS IN SUPPORT OF REINSTATEMENT
On 25 November 2024 the review applicant applied via email for reinstatement and submitted the following for the Tribunal’s consideration.
The review applicant’s email of 25 November 2024 is reproduced below.
Subject: Response to Tribunal's Findings
Dear Tribunal,
I would like to address point 14 of your findings. I never stated that I would be returning to Taiwan; rather, my family is scheduled to pick up my mother and take her back to Taiwan on December 15. My intention was to request a postponement of the hearing date so that I could care for my mother until that date. Once my family returns to Taiwan, I will be able to attend the hearing.
I would also like to clarify that my initial absence from the hearing was not due to unwillingness to appear. I genuinely arrived in Melbourne, but due to a work-related injury, I faced several challenges. Additionally, I did not receive timely notifications about the hearings; I only received SMS reminders close to the hearing dates, as I had lost the email from my visa application.
I kindly request that you consider extending the hearing date until after December 15. I assure you that I will attend the hearing promptly. I am currently waiting for my family to finalize my mother's flight arrangements, and I will provide the Tribunal with the flight details as soon as they are confirmed.
Thank you for your understanding.
ADDRESSING THE REVIEW APPLICANT’S SUBMISSIONS
The Tribunal turns to address the review applicant’s submissions in support of his reinstatement request in his email of 25 November 2024.
FIRST SUBMISSION
The review applicant submits he did not say in his email of 28 October 2024 that he would be returning to Taiwan on [date December] 2024. The Tribunal has gone back and re-examined the review applicant’s email of 28 October 2024.
The review applicant’s email of 28 October 2024 relevantly states:
“My mother is still undergoing treatment, and I need to stay in the hospital to take care of her. However, I have already prepared my flight ticket and will be returning to Taiwan on December [date]. My family will apply for a travel visa to come and take her back. After that, I can start preparing for the court appearance. This will also give me more time to prepare the necessary materials. Thank you.”
(Underline and bold emphasis by Tribunal)
Notably the review applicant sent this email twice on 28 October 2024.
The Tribunal does not accept the review applicant’s submission on this point. He clearly stated in his email of 28 October 2024 that he had prepared his flight ticket and would be returning to Taiwan on [date December] 2024.
SECOND SUBMISSION
The review applicant also submits that he could not attend his original hearing of 9 May 2024 due to a workplace injury and due to his email having changed. These are two discrete subsets of the submission.
With respect to the first subset, that the review applicant could not attend his original hearing due to a workplace injury, the Tribunal is concerned that the review applicant had not provided proper medical evidence of this workplace injury.
With respect to the second subset, that the review applicant had changed his email and was therefore not receiving updated hearing notifications, the Tribunal does not accept this submission. It is the responsibility of the review applicant to specify correct and updated contact information in their review application and notify the Tribunal of any changes.
Notably even if allowance is made for lack of updated email addresses as to the original hearing date, it does not adequately explain why the applicant made such late applications for adjournments in his future hearing dates. He ought to have by then updated his email address formally and been diligently aware to check his updated email address. Tribunal records suggest that an updated email address was processed and recorded by 3 May 2024.
For clarity, the Tribunal notes that its reference to the original hearing of 9 May 2024 was to highlight that the review applicant exhibited a pattern of behaviour that was suggestive of seeking repeated adjournments without proper supporting material, placing medical appointments on the hearing dates, and seeking adjournments very close to the hearing date.
THIRD SUBMISSION
The review applicant also submits he will provide the Tribunal with flight details as soon as they are confirmed for his mother’s return to Taiwan on [date December] 2024.
However, this submission is contradictory.
The review applicant’s above email of 28 October 2024 clearly state that flight tickets are booked for [date December] 2024. Although in this email he states they are his tickets.
However even if considering that he is also booking a ticket for his mother, no further details are evidentially provided by way of copies of tickets or booking confirmations.
This is even more concerning as [date December] 2024 is at the date of writing this decision only a little over two weeks away, yet no evidence of such bookings or tickets have been provided for his mother.
The Tribunal does not accept this submission.
RAISING CONCERNS WITH MEDICAL EVIDENCE
Importantly in the Interim Dismissal Decision of 30 October 2024, the Tribunal squarely set out its concerns that no medical evidence was provided for the adjournment request.
The Tribunal at paragraph 7 stated:
The hearing adjournment request of 28 October 2024 has caused the Tribunal significant concern. The review applicant knew he had a hearing on 30 October 2024 but sought an adjournment very late on the same grounds as his request of 21 August 2024. Furthermore on this occasion he still had no medical documentation or evidence that the picture was of his mother or that he was required to care for his mother and could not attend the hearing on 30 October 2024.
The Tribunal at paragraph 9 stated:
Notably on 29 October 2024 the Tribunal made urgent contact with the review applicant to advise him that the adjournment was refused as there was no medical documentation and that the Tribunal was offering the review applicant the opportunity to attend the hearing of 30 October 2024 via audio video remotely.
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 review applicant was sufficiently put on notice that the Tribunal required proper medical information as to why he could not attend the hearing but did not provide this for the hearing of 30 October 2024.
Furthermore, he does not provide the required medical evidence for this reinstatement application.
Notably on 29 October 2024 the review applicant emailed the Tribunal and relevantly stated:
I have requested a medical certificate from the hospital, but they informed me that I need to wait for the doctor to arrive, and unfortunately, I will not be able to submit the medical certificate today. (Emphasis bold underline by Tribunal)
Till the writing of this decision no such medical certificate has been provided.
ENGAGEMENT WITH THE HEARING PROCESS
The Tribunal is also concerned about the review applicant’s overall engagement with the hearing process.
On 26 August 2024 the Tribunal had written to the review applicant offering an Audio Video remote hearing due to the adjournment of the 23 August 2024 hearing. The review applicant did not reply to this offer.
On 29 October 2024 the Tribunal had made urgent telephone contact with the review applicant to advise him that the adjournment sought for 30 October 2024 was refused as there was no medical documentation and that the Tribunal was offering the review applicant the opportunity to attend the hearing of 30 October 2024 via Audio Video remote hearing.
Furthermore, the Tribunal Registry on the morning of 30 October 2024 once again offered the review applicant the opportunity for a Audio Video hearing.
On 30 October 2024 the review applicant responded by email that he was not sure if a video hearing would work on his phone. The Tribunal does not accept this vague explanation.
In summary, the review applicant was offered three opportunities to attend the 30 October 2024 hearing via Audio Video remote hearing.
The Tribunal is of the view that all three offers for remote Audio Video hearings were reasonably open to the review applicant to accept but he failed to do so without providing a reasonable explanation.
The Tribunal also notes with concern that the review applicant books medical appointments on hearing dates without explanation as to why they are needed exactly on the hearing dates. This occurred on both 9 May 2024 and 23 August 2024.
THE RIGHT TO A HEARING AND ITS LOSS
The right 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 adjourned review hearing of 30 October 2024. The invitation to attend the hearing clearly stated the consequences of a failure to attend. Furthermore, this was not the review applicant’s first invitation to a hearing.
The review applicant was also provided with three opportunities for attending the hearing via remote Audio Video Hearing on 26 August 2024 via email, 29 October 2024 by telephone contact and a further email on the morning of 30 October 2024 which he did not take up.
The Tribunal also notes that the review applicant on both 9 May 2024 and 23 August 2024 booked medical appointments when those two dates were set for hearings. There is no explanation for why medical appointments were needed specifically on the hearing dates.
The review applicant has not provided any details of flight bookings or ticket copies which he suggests he is arranging for [date December] 2024 with respect to his mother.
The review applicant neither for the hearing of 30 October 2024 nor to support this reinstatement application has provided any suitable particularised medical evidence with respect to his mother’s illness or treatment stating he cannot attend and participate at a hearing.
Despite suggesting by his email of 29 October 2024 that a medical certificate would be provided to the Tribunal, this has not occurred.
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.