1928711 (Refugee)

[2025] ARTA 1303

1928711 (REFUGEE) [2025] ARTA 1303 (6 JUNE 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  1928711

Tribunal:General Member D Hughes

Place:Melbourne

Date:  6 June 2025

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

Statement made on 06 June 2025 at 12:17pm

CATCHWORDS
REFUGEE – protection visa – no appearance at hearing – application for review dismissed – request for decision accepted as request for reinstatement – no further response to tribunal’s communications or medical evidence provided – not appropriate to reinstate application – dismissal confirmed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 368B(5)
Administrative Review Tribunal Act 2024 (Cth), ss 99, 106

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 23 September 2019 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).

2. On 16 April 2025, the Tribunal dismissed the application under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) as the review applicant did not appear before it at the time and date of the scheduled hearing.

3. On 22 April 2025, 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.

4. On 16 May 2025, the Tribunal received the following email from the review applicant:

   I couldn’t attend hearing due to nervous breakdown it’s taking big impact on my mental health and having panic attacks, I’ll request to the Tribunal that All my given proofs be considered, looked into and a decision be made in my case without me being present

5. On 21 May 2025, the Tribunal wrote to the review applicant to advise that as the application was dismissed on 16 April 2025, it was unable to make a decision in the matter without a hearing – i.e. under s 106 of the ART Act. The Tribunal considered it could only confirm the dismissal of the application or reinstate the application where a request had been made.

6. The review applicant was also asked to confirm whether his email of 16 May 2025 was a request to reinstate the application and, if so, to provide further information about why he could not attend the hearing. The review applicant was given until 26 May 2025 to provide further details or information.

7. The review applicant did not respond to the Tribunal’s email. An officer of the Tribunal called the review applicant on 28 May 2025 to seek clarification or response to the Tribunal’s email. There was no answer. A message was left on the review applicant’s voicemail, but no response was provided. The review applicant has not replied to those requests or otherwise contacted the Tribunal as at the date and time of this decision.

8. As the review applicant’s 16 May 2025 email followed the Tribunal’s notification of the dismissal, and also refers to his non-attendance at the hearing, the Tribunal has proceeded on the basis that the review applicant’s email was a request for reinstatement and that it was made within 28 days after receiving notice of the decision.

9. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

10. In his email to the Tribunal of 16 May 2025, the review applicant has referred to a nervous breakdown, panic attacks and his mental health as reasons for why he did not attend the hearing. Those are potentially serious concerns, however the review applicant provided no additional information or supporting evidence about those concerns.

11. The Tribunal wrote to the review applicant and also called him after his initial email, but the review applicant has not responded to the Tribunal’s requests for further information or otherwise to clarify his request. He also did not respond to indicate that he could not provide such information. In the circumstances, the Tribunal is not satisfied that he had a medical or other reason that affected his ability to attend the hearing.

12. The Tribunal has had regard to the review applicant’s engagement in the review, as well as the evidence provided in relation to his case to date. His application does not obviously lack merit, but there are a number of potential issues and concerns that would require consideration by the Tribunal. Indeed, this was the reason he was notified to attend a hearing in the first instance. If the matter were reinstated, the review applicant would not be seeking to enable the Tribunal to resolve those matters through a rescheduled hearing, rather the Tribunal would need to resolve those matters on the information already provided.

13. In the circumstances, the Tribunal does not consider the request for a decision on the papers is of itself an appropriate basis to reinstate the application. It was open to the review applicant to request a decision on the papers ahead of the scheduled hearing. The Tribunal notes the hearing notice expressly provides for this as an option. The review applicant completed that form and indicated he would attend the hearing, but he ultimately did not. And, as discussed above, the review applicant has not satisfied the Tribunal that he had a health condition or other circumstance that prevented him from attending the hearing.

14. The Tribunal is conscious of the review applicant’s claimed circumstances, but having regard to all the information before it, the Tribunal does not consider it appropriate to reinstate the application.

15. Even if the Tribunal is wrong as to whether the 16 May 2025 email was a request for reinstatement, the Tribunal considers that the application would be dismissed by operation of law because no request for reinstatement would have been made.

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

    DECISION

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