2102784 (Refugee) - [2025] ARTA 1082

2102784 (REFUGEE) [2025] ARTA 1082 (15 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2102784

Tribunal:General Member F Russo
Place:Sydney
Date: 15 April 2025
Decision:The Tribunal confirms the decision to dismiss the application.

Statement made on 15 April 2025 at 5:35pm
CATCHWORDS
REFUGEE – protection visa – China – no appearance at hearing – application for review dismissed – request for reinstatement, with no reason for non-appearance provided – change of email address notified on morning of hearing – brief and vague claims and no documentary evidence – fear of harm by executives of organisation because of knowledge of their embezzlement – threats but no harm, and unclear explanation of future fears – no sufficient merit and reinstatement not appropriate – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 56, 99, 102, 106
Migration Regulations 1994 (Cth), ss 368B(5), 368C, 379A(5)(d)
CASES
DQB22 v MICMA [2024] FedCFamC2G 934
EKM18 v MICMA [2023] FedCFamC2G 1142
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2021 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).
On 7 March 2025 the Tribunal dismissed the application under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) 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). 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 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.
REASONS FOR DECISION
On 5 April 2025 the review applicant uploaded an online submission in which he stated the following:
I kindly request that the Tribunal consider rescheduling the hearing, so that I may have the opportunity to attend in person and provide a full presentation of my case. Should the Tribunal find it is not possible to reschedule the hearing, I respectfully request that the Tribunal proceed with making a fair decision based on my application and the evidence I have provided.
I sincerely hope that the Tribunal can understand my situation, and I look forward to your response.
Thank you for your attention to this matter, and I trust a just decision will be made.
On the morning of 9 April 2025, the Tribunal wrote to the applicant using the most recent email address he had provided in connection with the application for review. The Tribunal noted that it had dismissed the application for review on 7 March 2025 due to the review applicant’s failure to appear at the scheduled hearing on 6 March 2026. The Tribunal advised the review applicant that it would treat the online submission which it received on 5 April 2025 as a request for reinstatement of the application but noted that he had provided no reasons for why he failed to appear at the hearing. The Tribunal requested that the review applicant provide a further submission advising why he failed to appear at the hearing as well as any other information that he wishes the Tribunal to take into account in deciding whether it is appropriate to reinstate the application for review. The Tribunal advised that the response should be provided to the Tribunal by 10 April 2025.
No further information or documents were provided by the review applicant.
The Tribunal also notes that, as set out in its reasons for the initial dismissal decision of 7 March 2025, on 6 March 2025 (the morning of the scheduled hearing) the Tribunal received an email from the review applicant, sent from [an email address] other than that provided with the application for review. The email stated, ‘I need to change my email address because I can no longer log into my previous one,’ and provided the name of the review applicant and the Tribunal case file number. A Change of Contact Details form was attached, which listed the new email address as the review applicant’s new contact details. No request for adjournment of the hearing was received and the review applicant did not respond to the hearing invitation.
Section 102 of the ART Act provides for the reinstatement of applications. However, s 368C of the Act relevantly provides as follows:
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.
The question of whether reinstatement of an application is appropriate is not limited to whether there is an adequate explanation for the non-appearance, and the Tribunal has a statutory obligation to form an opinion as to whether reinstatement is appropriate having regard to all the reasons advanced by an applicant in support of reinstatement: DQB22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 934 at [60].
In Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479, O’Bryan J, in considering the exercise of the discretion in relation to the repealed s 362B(1C) of the Act, which used the same wording as s 368C(3) of the Act, held the following are relevant considerations for the exercise of the discretion to reinstate an application [at paras 47-48 of the Court’s decision]:
a.Whether the applicant has a reasonable or acceptable excuse for their absence at the hearing of their substantive application; and
b.Whether the application for review has sufficient merit to warrant the reinstatement.
O’Bryan J further stated:
That is not to suggest that those two factors are exhaustive of potentially relevant considerations. Other considerations may include: the applicant’s conduct generally in progressing their review application and the prejudice to either party or to the wider public (if any) arising from reinstatement. [47]
Further, having regard to the subject matter, scope and purpose of the power to reinstate in s 362B(1C), I consider that it is implicit that the question whether the applicant has a reasonable excuse for their absence at the hearing of their substantive application is a mandatory consideration for the Tribunal. [48]
Therefore, in considering whether to reinstate the application for review, the Tribunal has considered:
a.The reasons the review applicant has provided for failing to appear at the hearing and whether the applicant has a reasonable or acceptable excuse for his absence at the hearing;
b.Whether the application for review has sufficient merit to warrant the reinstatement, including the applicant’s conduct generally in progressing the application for review; and
c.Any other considerations that the Tribunal considers relevant, including any matters raised by the applicant and the context of the application.
The reasons provided for failing to appear at the hearing
As noted above, on 5 April 2025 the review applicant requested that the Tribunal reschedule the hearing so he could have the opportunity to attend in person and present his case. The review applicant did not provide any reasons for why he failed to appear at the hearing.
On 9 April 2025, the Tribunal wrote to the applicant to request that he provide an explanation for why he failed to appear at the hearing, including any other information that he wishes for the Tribunal to take into account in deciding whether it is appropriate to reinstate the application for review. The Tribunal has not received a response from the applicant or any further information.
In considering whether the applicant has a reasonable or acceptable excuse for not appearing at the hearing, I have also taken into account the email received from the applicant on the morning of the scheduled hearing, to which the applicant attached a Change of Contact Details form.
As noted above, on 6 March 2025 the Tribunal received an email from the applicant, sent from an email address other than that provided with the application for review, in which he stated:
I need to change my email address because I can no longer log into my previous one.
The email listed the applicant’s name and Tribunal case file number and attached a Change of Contact Details form which listed the new email address as the applicant’s contact address. The email is time stamped as having been sent at 12:25am on 6 March 2025, the day of the scheduled hearing.
I have considered whether the applicant’s claim that he could not longer log into his previous email address is a reasonable or acceptable excuse for not appearing at the hearing.
In its reasons for decision for the initial dismissal of the application for review on 7 March 2025, the Tribunal was satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5) of the Act. I note that on 13 February 2025 the Tribunal sent the review applicant a notice of the hearing. The notice was sent to the email address the applicant provided with the application for review and was not returned to sender.
The Tribunal notes that the applicant did not provide an updated email address until 6 March 2025. The Tribunal also notes that s 379A of the Act sets out the methods by which the Tribunal is to give a document to a person, which includes transmission by fax, email or other electronic means. In relation to email, transmission must be to the last email address provided by the recipient in connection with the application for review (s 379A(5)(d)). According to s 379C(5), where a document has been transmitted by email, the person is taken to have received the document at the end of the day on which the document is transmitted. I am therefore satisfied that on 13 February 2025 the review applicant received appropriate notice of the date, time and place of the hearing and the applicant did not seek to update his email address until 6 March 2025, on the morning of the hearing.
In addition to this hearing notice, two SMS reminders about the hearing were sent to the review applicant five business days and one business day before the scheduled hearing. There is nothing from the Tribunal’s SMS delivery system to indicate that the SMS reminders failed to be delivered. Given the timing of these SMS messages and the applicant’s provision of the Change of Contact Details form on the morning of the hearing, if the applicant’s decision to provide the Tribunal with updated contact details was prompted by the SMS reminders he was sent, it raises questions as to why the review applicant did not at that point contact the Tribunal to obtain details of the hearing or request a postponement or adjournment of the hearing. The Tribunal notes that the SMS reminders contained the following text:
REMINDER: Your ART hearing is on 06/03/25. Please check the Notice of Hearing to confirm details. If you have not replied to the Notice of Hearing, please do so immediately. Any questions, call 1800 228 333. DO NOT REPLY to this message.
On the evidence before it, the Tribunal is satisfied that the review applicant received notice of the hearing as required by s 379A of the Act and was also sent two SMS reminders about the hearing. Although the review applicant has not specifically stated that his reasons for failing to appear at the hearing were because he did not receive notice of the hearing, the Tribunal does not find this would be a reasonable excuse or explanation under the circumstances given the review applicant received notice of the hearing three weeks before the scheduled hearing date and he received two SMS reminders which were not returned as undeliverable.
As noted above, the review applicant has not provided any reasons for the failure to appear at the hearing, other than making a vague submission that ‘the Tribunal can understand my situation’. The review applicant has not provided any details of circumstances which resulted in him being unable to attend the hearing or any explanation for the non-appearance other than what the Tribunal might infer from the Change of Contact Details form received on the morning of the hearing. Despite being given the opportunity to provide reasons for the failure to appear, the review applicant has provided no such information.
The Tribunal finds that the applicant has not provided reasons for not appearing and has failed to provide a reasonable or acceptable excuse for not attending the hearing.
The applicant’s conduct in progressing the application and whether the application for review has sufficient merit to warrant reinstatement
In his visa application, the applicant claims that he worked as a volunteer for [an organisation], and that he found that top executives were embezzling funds. He claims that he was threatened with violence if he reported the matter to the police. He claims that he left the [organisation] to start a new life, but they continued to ‘faze’ him and disturb his family. He declares that he did not experience any harm prior to leaving China. The applicant provided an unclear explanation as to what he thinks will happen to him if he returns to China, stating:
I’m not sure what will get to me if I return to my country, but one thing that I can sure that not only the physical violence will get to me.
The applicant provided the Department with no documentary evidence in support of his claims.
The delegate’s reasons for decision, a copy of which the review applicant provided to the Tribunal, indicate that on 9 January 2020 the Department sent the applicant a letter acknowledging that he had lodged a valid application and advising that he could provide additional information relating to his claims. Further, on 4 February 2021 the Department sent the applicant a letter inviting him under s 56 of the Act to provide additional information about some of his claims. A copy of the s 56 letter is on the Department file. The letter advised the applicant that his statement of claims lack substantiating details such as dates and locations and that he has provided no documentary evidence in support of his claims. The letter invited the applicant to provide more information about what happened in China, as well as to provide supporting documents. The delegate’s reasons for decision indicate that the applicant did not respond to the invitation. There is nothing on the Department file to indicate that the applicant responded to the invitation or provided the Department with supporting documents.
The review applicant provided with his application for review copies of the delegate’s reasons for decision and notice of the decision from the Department. He has not otherwise provided the Tribunal with any other documents or information in support of the application for review. On 11 March 2021 the review applicant contacted the Tribunal to request a letter for the purpose of obtaining access to Medicare.
On 15 January 2025 the Tribunal sent the review applicant an email informing him that his file was being prepared to be given to a Tribunal Member. The Tribunal requested that the review applicant complete a pre-hearing information form and provide it to the Tribunal within 7 days. This form included the opportunity to provide the Tribunal with more information about his claims for protection. The review applicant did not respond to this request and has not otherwise provided the Tribunal with further details of his claims or any supporting documents.
As noted above, the applicant was invited on 13 February 2025 to attend a hearing. The hearing invitation specified that the review applicant should provide the Tribunal with all documents which he intends to rely upon in support of his case by 27 February 2025. The Tribunal’s invitation letter specified that the decision made by the Department sets out the reasons for that decision, and that he should have regard to these reasons, and to any changes in his circumstances, in providing documents and preparing for the hearing. The hearing notice was sent to the email address the review applicant had provided with his application for review. The hearing notice was not returned to sender. The review applicant did not provide any additional information in response.
The Tribunal considers that the review applicant has been given several opportunities to provide additional information and further particulars regarding his claims as well as supporting documents but has failed to provide any further information. The Tribunal considers the claims made in the visa application to be vague and lacking in detail. For instance, the claims lack details such as the name of the organisation the applicant claims he volunteered for, what role he had within this organisation, details of when or how he found executives had embezzled funds and when he was threatened. The applicant has declared in the visa application that he experienced no harm in China and his response to a question about what harm he fears on return to China is vague and unclear. The claims contained in the visa application are not sufficiently detailed to enable the Tribunal to be satisfied that the applicant faces a real chance of persecution in China or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied on the material before it that the application has sufficient merit to warrant reinstatement.
The Tribunal also notes that the application for review was filed with the Tribunal in March 2021, over four years ago. There is no evidence on the Tribunal file that the review applicant has taken any steps to progress the application since filing it with the Tribunal over four years ago. There is also no evidence that the applicant has made concerted efforts to further his review application after his non-appearance at the hearing: EKM18 v MICMA [2023] FedCFamC2G 1142 at [65]. In this case, the applicant responded to the Tribunal’s initial dismissal decision on 5 April 2025 and did not provide any additional information or supporting evidence to further his application for review. The Tribunal considers that the applicant has taken no steps to progress the application for review since filing it and finds this to be a further reason why reinstatement is not warranted in the current case.
Any other relevant considerations
I note that in his online submission of 5 April 2025, the review applicant requested that if ‘it is not possible to reschedule the hearing’ that ‘the Tribunal proceed with making a fair decision based on …[his] application and the evidence’ provided. The Tribunal understands this to be a request for the Tribunal to make a decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding a hearing, as the Tribunal can do under s 106 of the ART Act if certain circumstances arise.

I have therefore considered whether it is more appropriate to exercise the Tribunal’s discretion to make a decision in the proceedings without holding a hearing instead of confirming the dismissal of the application. Under the circumstances, I consider it would be preferable to dismiss the application for review rather than to make a decision without holding the hearing in the proceeding. This is firstly because the Tribunal has already dismissed the application for review on 7 March 2025. Secondly, as noted already, the applicant has provided no additional information in support of his claims or any supporting documents to the Tribunal, and the claims contained in the visa application are in parts vague and unclear and are on the whole not sufficiently detailed to enable the Tribunal to be satisfied that the applicant faces a real chance of persecution in China or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. Therefore, under the circumstances, I consider it more appropriate to proceed with the confirmation of the dismissal than to reinstate the application in order to make a decision in the proceedings without holding a hearing.
I have also considered the context of the application for review, namely, that the applicant has applied for a Protection visa, as well as the potential ramifications of a decision to not reinstate the application for review, including the seriousness of the possibility that the persecution feared could be suffered by the applicant: SZHSQ v MIMA (2006) 155 FCR 159. In EKM18 v MICMA [2023] FedCFamC2G 1142 at [4] and [69]. In this case, I consider that the claims contained in the visa application are not sufficiently detailed to enable the Tribunal to be satisfied that the applicant faces a real chance of persecution in China or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. There is therefore insufficient evidence before the Tribunal to suggest a serious possibility that the claimed persecution could be suffered by the applicant on return to China. Accordingly, in this case the Tribunal does not consider the context of the application to be sufficient reason for why the application for review should be reinstated.
I have considered whether the review applicant has provided any other information which is relevant to the consideration of whether to reinstate the application. In his online submission of 5 April 2025, the applicant gave as his reasons for reinstatement, ‘so that I may have the opportunity to attend in person and provide a full presentation of my case.’ Given the findings above regarding the lack of action the review applicant has taken to progress his application for review and my findings regarding the proper invitation the applicant received to attend a hearing and the lack of explanation for non-attendance, I do not consider this to be a satisfactory or compelling reason for reinstating the application for review. On 9 April 2025 the applicant was invited to provide any other information as to why it would be appropriate to reinstate the application for review. The review applicant did not respond to this invitation and has not raised any other relevant considerations in addition to those which the Tribunal has considered.
Conclusion regarding dismissal
Having regard to all of the circumstances in this case and the evidence before, the Tribunal is not satisfied that it is appropriate to reinstate the application.
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.