1925447 (Refugee)
[2025] ARTA 702
•21 January 2025
1925447 (REFUGEE) [2025] ARTA 702 (21 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1925447
Tribunal:Senior Member R Titterton
Place:Sydney
Date: 21 January 2025
Decision:The Tribunal confirms the decision to dismiss the application.
CATCHWORDS
REFUGEE – protection visa – Malaysia – dismissal decision – failure to attend Tribunal hearing – applicant moved interstate – explanation for non-appearance – dismissal confirmed – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, ss 4, 9, 56, 99, 102
Migration Act 1958, ss 5H, 36, 368B, 386C, 426A
CASES
DQB22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 934
EKM18 v MICMA [2023] FedCFamC2G 1142
FNV17 v Minister for Immigration [2020] FCCA 535
FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1025
Kumar v MICMA [2023] FCA 479
SZHSQ v MIMA (2006) 155 FCR 159
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
INTRODUCTION
1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 4 September 2019 to refuse to grant the visa applicants Protection (Class XA) Subclass 866 visas under the Migration Act 1958 (Cth) (Migration Act).
2. On 16 December 2024, the Tribunal dismissed the application under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) as the review applicants did not appear before it at the time and date of the scheduled hearing.
3. The review applicants were 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 Migration Act. The review applicants were 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.
4. The review applicants 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.
5. Accordingly, the decision to dismiss the application is confirmed. In these circumstances, the decisions under review are taken to be affirmed.
BACKGROUND AND FINDINGS
6. The first-named applicant (hereafter the applicant) was born on [date] in [his home village], Kelantan Province, Malaysia.
7. The other applicants are six members of his family unit being his wife[1], [and specified family members][2], [with][3] [relationships and dates of birth specified][4]. All the applicants arrived in Australia [in] April 2018 having been issued UD-601 Electronic Travel Authorities.
[1] The second-named applicant
[2] The third to fifth-named applicants
[3] The sixth-named applicant
[4] The seventh-named applicant
8. On 4 May 2018, the applicant applied for XA-866 Protection visas, and associated Bridging visas granted to the applicant and the six other applicants.
9. The applicant states in his application for a protection visa:
On the evening of [a date in] April 2018, my younger brother [named] was involved with a fight with a group of gangsters. When I was informed of the incident by a friend of mine, I rushed to the scene.
I tried to settle the matter but the gangsters still wanted to beat up my brother. My younger brother and I managed to escape but since that day we feared of our lives.
A friend of mine told me that the gangsters are looking for the two of us. We were also told that they wanted to kill us.
So, fearing for our lives, [days later], my family together with my [specified family members], took a flight to Australia. We decided to ask for protection from the government of Australia.
…
Our lives are threatened by a group of gangsters in [a named town] because of the trouble that they had with my younger brother.
...
We do not believe that the police will be able to protect us all the time.
On 4 September 2019, a delegate of the Minister refused the application for protection. The delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) of the Migration Act. Nor was the delegate satisfied that the applicant was is a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) and s 36(2)(aa) of the Migration Act.
As the second to seventh-named applicants had no separate claims for protection of their own, the delegate accordingly refused their applications for protection visas.
On 10 September 2019, the applicants filed an application with the Tribunal to review the delegate’s decision.
On 31 March 2024, the Tribunal conducted its usual “pre-constitution outreach” with the applicant.
On 28 August 2024, the Tribunal wrote to the applicant advising him that he may now be able to receive free legal help with his review from certain refugee and immigration legal assistance providers. The Tribunal informed him that several legal assistance providers across Australia have been given funding to help applicants through the protection visa process, including by giving him advice or information regarding his review and the review process, assisting him with the preparation of submissions for his review, or representing him at the Tribunal, including attendance at hearings. The applicant was given contact details of participating legal provides throughout Australia.
On 5 December 2024, the applicant was informed by the Tribunal that the application for review had been constituted to a Tribunal Member and the hearing would be held in Sydney on 18 December 2024 at 10.00AM.
On 9 December 2024, the applicant sent the Tribunal an email which relevantly stated:
I am requesting a change of date and venue for the hearing. I will be moving to [Suburb 1], Melbourne on the 15th of December 2024.
I would appreciate it very much if the venue for the hearing be changed to Melbourne.
It does not appear that the Tribunal responded to this email.
On 16 December 2024, the applicant sent an email to the Registry of the Tribunal which relevantly stated:
I am requesting for a change of hearing venue to Melbourne because my family and I have moved to Melbourne.
I am also requesting for a change of date for the hearing because mentally and physically my family and I are not ready because we are still very tired moving our things to our new
I am also requesting for a face to face hearing because in my opinion it is the best way considering how important this hearing is for our visa.
I sincerely hope that my request will be given due consideration”.
The Tribunal responded that day by email which stated:
Thank you for your email dated today requesting an adjournment of the hearing on 18 December 2024.
Two reasons are advanced for the adjournment request.
The first is that you are “very tired” from moving. The Tribunal does not consider that to be a sufficient reason to warrant adjourning the matter.
The second reason is that a “face to face hearing” is, in your opinion “the best way” to conduct a hearing. Here the Tribunal notes that its experience is that hearing can be conducted just as effectively and fairly by video as they are in person.
In summary, even when considered cumulatively, the Tribunal does not consider an adequate reason for adjourning the hearing has been established.
Furthermore, to transfer your file to Melbourne mean[s] your application for review has to be reconstituted from a Sydney-based Member to a Melbourne-based member, which will involve further delays in considering your application.
All that said, you are welcome to renew your application for an adjournment at the hearing on Wednesday.
(emphasis added)
A further letter from the Tribunal to the applicant that day confirmed that the hearing would not be postponed, and that the Tribunal Member had approved the hearing being conducted by way of audio-visual means on MS teams videoconference.
No applicant attended the hearing on 18 December 2024. Consequently, the applicants’ application for review was dismissed on the basis of their nonappearance at the hearing under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
On 13 February 2025, that is 26 days after the initial dismissal, the applicant sent an email to the Registry at 3:54 AM which relevantly stated:
I did not attend the hearing because I was in the midst of moving my belongings to my new rental house in Melbourne. My family and I was tired and not in the right frame of mind to attend the hearing.
Now, I am ready to attend the hearing. Any date and time for the hearing would be fine for me.
The Tribunal has decided to treat that request as an application for reinstatement of the application for review.
RELEVANT LAW
Section 102 of the ART Act provides for reinstatements of applications. However, s 368C of the Migration Act relevantly provides:
Reinstatement of application or confirmation of dismissal
(1) This section, instead of section 102 of the ART Act, applies if the ART dismisses an application for review of a reviewable migration decision or a reviewable protection decision.
(2) If the dismissal is made under one of the following provisions of the ART Act, the applicant may, within 28 days after receiving notice of the decision under subsection 368B(5), apply to the ART for reinstatement of the application:
(a) section 99 (Tribunal may dismiss application if applicant does not appear);
…
(3) On application for reinstatement in accordance with subsection (2), the ART must:
(a) if it considers it appropriate to do so -- reinstate the application by written statement under 368B; or
(b) confirm the decision to dismiss the application, by written statement under section 368.
(emphasis added)
The authorities suggest that the Tribunal must consider all matters put forward by an applicant in support of a reinstatement application and make express findings on those matters in its confirmation of the initial dismissal decision. For instance, in Kumar v MICMA [2023] FCA 479 (Kumar) at [48] the Federal Court of Australia held that it is implicit that the question whether the applicant has a reasonable excuse for their absence at the hearing is a mandatory consideration for the Tribunal, and that if the Tribunal does not consider this issue in a reasonable or rational manner, the confirmation decision will be affected by jurisdictional error.
By way of analogy, O’Bryan J stated in Kumar at [45], that:
Order 52, r 38A(2)(a) of the Rules does not specify any criteria for the exercise by the Court of the power conferred on it by that provision. However, the considerations which, in my view, would be relevant in the exercise of that power would include at least whether the moving party has provided an acceptable explanation for that party's absence when the appeal was called on for hearing and the strength of that party's case on the appeal if the order dismissing the appeal were to be set aside.
The authorities have also suggested that other relevant matters to take into consideration include the following.
First, the seriousness of the possibility that the persecution feared could be suffered: SZHSQ v MIMA (2006) 155 FCR 159; EKM18 v MICMA [2023] FedCFamC2G 1142 at [4] and [69].
Secondly, the applicant’s efforts to further the review application after non-appearance: EKM18 v MICMA [2023] FedCFamC2G 1142 at [65].
Thirdly, the question of whether reinstatement of an application is appropriate is not limited to whether there is an adequate explanation for non-appearance, and the Tribunal has a statutory obligation to form an opinion as to whether reinstatement is appropriate having regard to all of the circumstances of a matter: DQB22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 934.
Finally, I note that any discretionary power conferred by statute is subject to the condition that it must be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332).
As the Federal Circuit and Family Court of Australia stated in FNV17 v Minister for Immigration [2020] FCCA 535:[5]
27. … The question of whether the Tribunal acted unreasonably in the exercise of its statutory power in relation to reinstatement is governed by case law that makes it clear that the process of review of legal unreasonableness “will be inevitably fact dependent” (see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [48]).
28. The test for unreasonableness is “necessarily stringent” (see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11] per Kiefel CJ) (“SZVFW”). That case involved a judicial review decision where the Federal Circuit Court had found that the decision of the Tribunal to proceed to dismiss a matter without taking further steps to contact the applicants who did not attend, was legally unreasonable. All members of the High Court found, allowing the appeal, that the Tribunal did not act unreasonably in dismissing the application. Kiefel CJ stated at [8] that the Tribunal was entitled to proceed to exercise its power to dismiss pursuant to s 426A of the Act and that it was difficult to see how doing so was unreasonable.
[5] upheld on appeal: FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1025
CONSIDERATION
Section 9 of the ART Act relevantly provides that:
The Tribunal must pursue the objective of providing an independent mechanism of review that:
…
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits.
Section 56(2) of the ART Act further provides that a party to a proceeding in the Tribunal must use their best endeavours to assist the Tribunal to achieve the objectives in s 9.
As the Guidance and Appeal Panel of the Tribunal (GAP) recently stated in Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42 at [7] footnote omitted):
Consistent with s 9 of the ART Act, the Tribunal has a responsibility to manage its cases, from lodgement until final resolution, expeditiously. It must retain control of the progress of its cases rather than allowing the parties to determine the pace at which a case proceeds. Consequently, requests for an adjournment of any case event, including a directions hearing or a substantive hearing, will not be granted unless there is good reason to do so. The fact that both parties agree to an adjournment on its own does not constitute a good reason. Neither does the convenience of the parties or their representatives. Once the parties are given fair notice of a case event, ordinarily, they should assume that it will go ahead as scheduled and that they will have to participate.
(emphasis added)
In this matter:
(1)the applicants were invited to attend a hearing in Sydney;
(2)the applicants indicated that they were moving to Melbourne and sought an adjournment of the hearing, which application was refused;
(3)the applicants were then invited to attend a hearing by video link, and specifically permitted to make any further application for an adjournment of the hearing at that time;
(4)no applicant attended the video hearing. The applicant’s only stated reason for not attending was “I was in the midst of moving my belongings to my new rental house in Melbourne. My family and I was tired and not in the right frame of mind to attend the hearing”.
Given that:
(1) the applicant himself never suffered any physical harm in Malaysia, and his brother “was involved” in a fight on but one occasion in 2018, and it therefore appears that the possibility that the applicant would suffer persecution if he returned to Malaysia is low;
(2) save for now indicating to the Tribunal that the applicant is now attend a hearing, impliedly because he is now not “tired” and now “in the right frame of mind”, the applicant has taken no other steps to further his review application, such as by sending any supportive material to the Tribunal;
(3) I do not consider and do not find that the applicants had a reasonable excuse for not attending the hearing, and the stated reasons for not doing so (namely “I was in the midst of moving my belongings to my new rental house in Melbourne. My family and I was tired and not in the right frame of mind to attend the hearing”) to be unpersuasive,
I do not consider it appropriate to reinstate the review application.
I further consider that a decision to reinstate the matter would not be consistent with the objective of the ART Act to ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits.
Given the recent guidance of the Guidance and Appeals Panel of the Tribunal in Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42, the parties, having been given notice of the hearing[6], should have assumed that the hearing would have gone ahead as scheduled and that their participation was required, particularly in circumstances were the applicants had been informed that they could renew their application for an adjournment at the hearing.
[6] A hearing being a Tribunal case event: ART Act, s 4
DECISION
The Tribunal confirms the decision to dismiss the application.
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