2108460 (Refugee)

[2025] ARTA 1345

2108460 (REFUGEE) [2025] ARTA 1345 (22 JUNE 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2108460

Tribunal:Phillippa Wearne

Place:Sydney

Date:  22 June 2025

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

Statement made on 22 June 2025 at 12:37pm

CATCHWORDS
REFUGEE – protection visa – China – no appearance at hearing – application for review dismissed – application for reinstatement made more than 28 days after dismissal notification – explanation that agent forwarded hearing notice too late for applicant to respond – consent to decision without hearing if application reinstated – not appropriate to reinstate and dismissal confirmed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 368B(5)
Administrative Review Tribunal 2024 (Cth), s 99
Migration Regulations 1994 (Cth),

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 15 June 2021 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 May 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.

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. The hearing notice inviting the review applicant to attend the hearing scheduled for 15 May 2025 at 10:30am was emailed to the review applicant’s designated email address on 24 April 2025. It was not returned to sender. Additionally, 2 separate SMS messages were successfully sent in the week before the scheduled hearing date to the phone number registered at the Tribunal as the phone number for contact with the applicant. An interpreter was booked and was ready to attend the scheduled hearing. A hearing officer checked the reception area of the hearing location looking for the applicant at 10:30am, 10:45am and 11:00am. The applicant did not attend the hearing.

6. On 19 May 2025, the review applicant applied for reinstatement stating that the ‘agent’ who was assisting her sent her the hearing notice too late for her to respond.  However, the Tribunal notes that there is no representative or authorised recipient recorded at the Tribunal for the review applicant. The review applicant also requested that if reinstated, a decision be made on her application without her attending a hearing. The review applicant attached a Change of Contact Details form, giving a new email address for correspondence.[1] The Tribunal notes that her phone number remains the same as the one to which the 2 SMS messages were sent during the week before the scheduled hearing.

   [1] She also provided a new postal address for communication with the Tribunal.

7. On 6 June 2025 the review applicant requested the outcome of her request for reinstatement The Tribunal responded noting that she could submit any further information relevant to her request to reinstate by 4pm on 13 June 2025. The review applicant sent an email on 11 June 2025 apologising for not attending the hearing, adding she regretted missing her opportunity to appear before the Tribunal to present her case and be heard.

8. The Tribunal has considered the review applicant’s request to re-instate her application for review. First, it notes that it is the review applicant’s responsibility to ensure contact details with the Tribunal remain up to date. She was informed about the importance of this on several occasions including in the Acknowledgment of her application for review sent to her by the Tribunal on 1 July 2021, which stated:

   It is important that you tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform
   them of any change in your contact details. If you do not, you might not receive an
   invitation to a hearing or other important information and your case may be decided without further notice.

9. Secondly, the Tribunal notes that the review applicant was informed on 20 February 2025 that her file had been given to a Tribunal Member. In the same email she was asked to complete a Pre-hearing information form to assist the Member conduct the review. The Tribunal stated in that email that ‘[w]e use this form to update the information on your file and to help determine the most appropriate way to conduct your hearing if one is required’. This communication from the Tribunal clearly indicates that the scheduling of a hearing could be approaching.

10. Third, the Tribunal fully complied with its notification requirements. Indeed, the hearing notice was sent to the email address provided by the applicant, about 3 weeks before the scheduled hearing date. Two SMS messages about the hearing were sent to the phone number provided, which remains her current number for contact. The Tribunal notes that there is no record in a Tribunal Case note or any other evidence, that the review applicant contacted the Tribunal to clarify the 2 SMS messages she received.

11. Finally, as recorded in the initial decision to dismiss this application for review, the review applicant’s contact with the Tribunal before the hearing date was limited. She requested a Medicare letter from the Tribunal on 12 April 2023. She did not respond to the Tribunal’s request dated 20 February 2025 to complete the Tribunal’s Prehearing information form. Although the Tribunal received several emails from her after the initial dismissal decision was made, prior to that she had provided no updating information regarding her claims for protection since applying for the review at the Tribunal in June 2021.

12. The Tribunal acknowledges the apology of the review applicant in her request to reinstate the proceedings. However, In the current case, it considers that she has been provided with the opportunity to present her case, she was notified of that opportunity appropriately and she did not provide a reasonable or acceptable excuse for her absence at the scheduled hearing. Her conduct in progressing her application (rather than requesting a reinstatement) does not assist her request for reinstatement. The decision to dismiss the application is confirmed.

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

    DECISION

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