2119919 (Refugee)
[2025] ARTA 2089
•26 May 2025
2119919 (REFUGEE) [2025] ARTA 2089 (26 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2119919
Tribunal:General Member D. Gordon
Place:Melbourne
Date:26 May 2025
Decision:Application dismissed under s 101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth).
Statement made on 26 May 2025 at 8:55am
CATCHWORDS
REFUGEE – protection visa – Vietnam – dismissal decision – applicant left Australia – no right of return to Australia – dismissal confirmed – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 99, 101, 102
Migration Act 1958 (Cth), ss 36, 65, 359Any 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 DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 13 December 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Vietnam applied for the visas on 3 September 2021.
For the following reasons, the Tribunal has decided to dismiss the decision under review.
DEPARTING AUSTRALIA AND PROCEDURAL FAIRNESS
Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.
So far as is relevant to this matter, s 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia.
Movement records indicate that the applicants are not in Australia. It appears that they left Australia [in] March 2025.
In compliance with s 359A of the Act with respect to disclosing adverse information and procedural fairness, the Tribunal by email wrote to the applicants on 7 May 2025 advising that its records showed that they are not in Australia and therefore could not be granted protection visas and inviting the applicants to comment on the information by 19 May 2025.
The applicants did not respond to the Tribunal’s correspondence of 7 May 2025.
The applicants also did not attend their review hearing via audio-video link which was set down for 1pm on 21 May 2025. The Tribunal waited a further half an hour at the scheduled time and place for the hearing, however the applicants did not appear.
There is no evidence or information to suggest a failure in delivery of the Tribunal’s invitation to attend the hearing sent on 6 May 2025 by email such as a return to sender or delivery failure notification.
There is also no evidence or information to suggest a failure in delivery of the Tribunal’s correspondence of 7 May 2025 such as a return to sender or delivery failure notification.
Importantly, the Tribunal’s correspondence of 7 May 2025 stated relevantly:
The Member advises that as a matter of procedural fairness, you are put on notice that the Tribunal intends to dismiss your review application on the basis that you are offshore with no right of return, and therefore cannot meet the criteria which requires you to be in Australia.
The Tribunal is satisfied that the applicants have been made aware of the consequences of them having left Australia and procedural fairness has been afforded to them.
The Tribunal is satisfied from the circumstances set out above that the applicants are not in Australia. Their visa status suggests they have no right of returning to Australia.
Therefore, the applicants do not satisfy the requirements of s 36(2) and cannot be granted protection visas. Having reached this conclusion, it is not necessary to consider the applicants' substantive case for the grant of the visa.
There are two options open to the Tribunal in these circumstances.
The Tribunal may dismiss the application for non-appearance at the hearing which is an initial dismissal and provides the applicants with an opportunity to seek reinstatement within 28 days of being notified of the initial dismissal. See s 99 and s 102(7)(b) of the Administrative Review Tribunal Act 2024 (Cth).
Alternatively, the Tribunal may also dismiss the application as the applicants have departed Australia and there are no reasonable prospects of success. See s 101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth). A right to seek reinstatement within 28 days of being notified is not provided for under s 102(7) of the Administrative Review Tribunal Act 2024 (Cth). Subject to error, such a dismissal operates as a final decision and the decision under review is taken to be affirmed.
The principle of legality requires that fundamental rights are preserved and not subject to deprivation without clear statutory authorization. Procedural fairness and the right to a merits review are analogous to such fundamental rights that arose historically in the common law.
In the usual course of the matter, a preference that preserves the rights of the applicants to seek reinstatement would be appropriate as this would also preserve their right to a substantive decision and the right to seek any judicial review. However, even if the matter was initially dismissed and subsequently reinstated, the applicants have no reasonable prospects of success as they have left Australia. Any perceived rights on a possible reinstatement are rendered nugatory.
Therefore, the Tribunal finds it appropriate to dismiss the matter on the basis that there are no reasonable prospects of success as the applicants have departed Australia.
Pursuant to s 101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal is satisfied that the application has no reasonable prospects of success as the applicants are not in Australia and dismisses the application without further consideration of that application or the information before the Tribunal.
DECISION
Application dismissed under s 101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth).
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