2010743 (Refugee)

[2025] ARTA 2093

2010743 (REFUGEE) [2025] ARTA 2093 (13 AUGUST 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2010743

Tribunal:General Member D. Gordon

Place:Melbourne

Date:  13 August 2025

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

Statement made on 13 August 2025 at 10:41am

CATCHWORDS

REFUGEE – protection visa – India – dismissal decision – failure to attend Tribunal hearing – request for reinstatement – dismissal confirmed – decision under review affirmed

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth), s 99
Migration Act 1958 (Cth), 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

1. This is an application for review of a decision made by a delegate of the Minister on 26 June 2020 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).

   The initial dismissal

2. On 1 August 2025 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.

3. 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 days period would result in confirmation of the dismissal decision.

   The request for reinstatement

4. 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.

5. On 3 August 2025 the review applicant sent the following email to the Tribunal:

   I had a lot of pain in my tooth the night before. So I took painkillers and rested. But the pain continued the next day too. Due to which I could not come.

6. The above email suggests that the review applicant had pain in his tooth the night before the hearing, which would have been 31 July 2025.

7. However, he did not email the Tribunal on the night of 31 July 2025 or contact the Tribunal by email or telephone at any time on the day before his 1pm hearing on 1 August 2025 that he would not be able to attend due to the pain his tooth. This is unsatisfactory bearing in mind the review applicant’s obligation to attend to his review hearing on 1 August 2025.

8. On 4 August 2025 the Tribunal sent a letter to the review applicant which stated relevantly as follows:

   However, the Member has requested a formal dental report outlining the dentist’s opinion regarding the applicant’s inability to attend.

   The dental report must be addressed to the Tribunal and include the dentist’s contact details, should the Tribunal wish to inquire further.

   Please ensure the report is provided by COB Friday 8 August 2025.

   The Tribunal will then consider whether to proceed with the matter.

9. On 5 August 2025 the review applicant emailed the Tribunal as follows:

   I took Panadol from my friend and rested. So I felt relieved. So I didn't make a dentist appointment.

10. The above reply of 5 August 2025 is unsatisfactory. The review applicant was clearly advised by the Tribunal’s correspondence of 4 August 2025 that a dental report was required for the Tribunal to further consider the matter of the applicant’s reasons for not attending the hearing on 1 August 2025.

11. The Tribunal sent a further letter to the review applicant on 6 August 2025 reiterating that a report was required from his dentist by 8 August 2025. The Tribunal clearly stated that if no such report was provided, the Tribunal may proceed to dismiss the review. Relevantly, the letter of 6 August 2025 from the Tribunal stated:

    The Member advises that you have till COB Friday 8 August 2025 to provide an appropriate medical certificate from a dentist, otherwise the Member may dismiss your review.

12. The review applicant did not submit anything in response to the Tribunal email of 6 August 2025. Nothing further was submitted by 8 August 2025.

    Consideration

13. The review applicant has not submitted a dental report by 8 August 2025.

14. The next step is to consider whether it is legally reasonable to confirm the initial dismissal of the application for review or whether grounds exist for setting aside the initial dismissal and reinstating the matter towards a hearing.

15. A dismissal for non-attendance or non-appearance ought not to be taken lightly and requires consideration of the reasons advanced for non-appearance, the consequences of being deprived of a right to a hearing and the surrounding circumstances.

16. The Tribunal refers to the review applicant’s email of 3 August 2025 that he could not attend his hearing on 1 August 2025 as he had a toothache the night before. The Tribunal does not accept this. For such a serious matter as attending a hearing, the review applicant at no time before the hearing informed the Tribunal of his toothache. He could have emailed or telephoned the Tribunal to advise of his toothache prior to the hearing. He did not do this. The Tribunal does not accept he had a toothache the night before his hearing.

17. The Tribunal refers to the review applicant’s email of 5 August 2025 that he took a Panadol from a friend and felt relieved, so he did not make a dentist appointment. The Tribunal does not accept this. Not attending a hearing is a serious matter. Had the applicant been so unwell from a toothache the night before, he ought to have attended for dental review of such a toothache that prevented him from attending a hearing or at least to obtain a report from his dentist certifying as to an examination of that tooth or toothache and to his inability to attend the past hearing. This was also not done. The Tribunal does not accept that the applicant took a Panadol from his friend and was so relieved that he did not visit the dentist.

18. The Tribunal furthermore wrote to the review applicant on 6 August 2025 advising that a dental report was required by 8 August 2025 otherwise the Tribunal may dismiss his review. The applicant did not reply and did not submit any dental report by 8 August 2025.

19. The review applicant has not provided a reasonable explanation for his non-appearance and despite being advised and granted time after his initial non-appearance, he has failed to provide a dental report as to his toothache.

20. The review applicant’s above reasons in his emails are unconvincing and not believable.

21. As a matter of procedural fairness, the Tribunal waited till 8 August 2025 being the time granted for the review applicant to provide the dental report. However, nothing further was submitted and there was no further response from the review applicant.

22. The review applicant has been provided with procedural fairness and the Tribunal has engaged with the review applicant on 4 August 2025 and 6 August 2025 and reiterated the need for a dental report by 8 August 2025.

23. The review applicant despite such further communication from the Tribunal and time granted has not provided the dental report or sought any extension of time or made any further submissions to the Tribunal. He did not reply to the Tribunal letter of 6 August 2025.

24. No dental report and nothing further has been submitted by the review applicant by 8 August 2025.

25. Whilst the consequences of having a matter dismissed are serious, the review applicant has not taken the appropriate steps to satisfy the Tribunal to reinstate the matter despite the Tribunal repeatedly engaging with him, advising him of the steps required to be taken and providing him with an opportunity to address his non-appearance and the initial dismissal.

26. In the circumstances, the Tribunal considers it legally reasonable to confirm the initial dismissal.

27. The decision to dismiss the application is confirmed.

28. In these circumstances, the decision under review is taken to be affirmed.

    DECISION

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