2207758 (Refugee) - [2025] ARTA 2085

2207758 (REFUGEE) [2025] ARTA 2085 (3 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2207758

Tribunal:General Member M Simmons
Place:Sydney
Date: 3 July 2025
Decision:The Tribunal confirms the decision to dismiss the application.

Statement made on 03 July 2025 at 3:05pm
CATCHWORDS
REFUGEE – protection visa – Thailand – dismissal decision – failure to attend Tribunal hearing – request for reinstatement – late notice of medical condition – dismissal confirmed – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 99
Migration Act 1958 (Cth), ss 65, 368B
CASES
DQB22 v MICMA [2024] FedCFamC2G 934
EKM18 v MICMA [2023] FedCFamC2G 1142
Singh v MIBP (2018) 266 FCR 459
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
PROCEDURAL HISTORY

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 May 2022 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act). The applicant applied to the Tribunal on 27 May 2022
On 4 June 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.
Om 4 June 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 days period would result in confirmation of the dismissal decision.
The review applicant requested that her matter be reinstated within the 28 day period, on 15 June 2025.
CORRESPONDENCE PRE HEARING
Between 27 May 2022 and 3 June 2025, the review applicant did not respond to any of the Tribunal’s correspondence, which was sent to her nominated email address. Nor did she contact the Tribunal of her own volition during that period. The Tribunal emailed the review applicant on the following occasions:
·On 7 June 2022 the Tribunal acknowledged the applicant’s review application, advising her that “If you wish to provide material or written arguments for us to consider, you should do so as soon as possible”. That document included instructions in Thai advising that the letter was important and that she should contact the Tribunal with a Thai interpreter via the Translating and Interpreting Service if she did not understand it.
·On 10 November 2023 the Tribunal requested that the applicant complete and return a pre-hearing information form within 7 days.
·On 15 May 2025 the applicant was sent a hearing notice for her 4 June 2025 hearing. That notice asked her to provide all relevant documents and information to the Tribunal by 28 May 2025. It also requested that she complete and return the enclosed ‘Response to hearing notice by 28 May 2025’.
·On 19 May 2025 the review applicant was asked to confirm her correct contact details by completed and return the Tribunal’s updated contact information form.
Subsequent correspondence, set out below, indicates the applicant did receive both May 2025 emails as she completed and returned the Tribunal forms issued to her after her matter was dismissed..
CORRESPONDENCE POST DIMISSAL
The review applicant did not attend the hearing listed for 1.00pm on 4 June 2025. The Tribunal sent her an email to her nominated email address advising that her matter had been dismissed at 3.57pm on 4 June 2025, enclosing a copy of the dismissal decision.
At 6.48pm on 4 June 2025, the review applicant emailed the Tribunal from a new email address, stating: “I am writing regarding my upcoming hearing scheduled for 4 June 2025. I would like to inform you that I will not be participating in the hearing and kindly request the Tribunal to make a decision based on the submitted documents without holding a hearing.”
Attached to that 4 June 2025 email was a completed Tribunal ‘Response to hearing notice’ form which was sent to the review applicant at her original email address on 15 May 2024. She signed and dated that form on 28 May 2025, in which she expressed she did not wish to attend the hearing and that she requests a decision on the papers.
Also attached to that email was the completed Tribunal ‘Change of Contact Details’ form that was sent on to the applicant at her previous email address on 19 May 2025, which she signed and dated on 29 May 2025.
Also provided with that email was a document labelled “My explanation letter” in which the applicant provided further details regarding her claimed political view, conduct in Thailand and fear of the Thai authorities. These protection claims were initially raised in her November 2021 visa application. She also submitted the biodata page of a passport issued to her by the Thai Ministry of Foreign Affairs in March 2025.
On 16 June 2025, the review applicant emailed the Tribunal requesting that her matter be reinstated. Extracts from that email include:
I am deeply sorry and very sad because I missed my Tribunal hearing on 4 June 2025. I did not mean to miss it. I never want to disrespect the Tribunal.
I did send an email to the Tribunal before the hearing. I used my personal email address, [Email 1], which is the one I always use. I said in that email I could not attend the hearing and I wanted my case to be decided by paper. I thought that was okay. I didn’t know I had to go in person too. I am not good at English and I don’t have a lawyer to help me understand clearly.
After that, I did not get any reply to my email. I thought the Tribunal accepted my request. I trusted that the decision would still be made fairly. But then I found out later my case was dismissed because I didn’t come to the hearing. I feel very shocked and heartbroken. I never meant to ignore or avoid my hearing.
Also, I think the Tribunal might have sent messages or emails to a different email address – [Email 2] – but I don’t use that email anymore. I don’t check it. That is maybe why I missed some important information. My real and active email is [Email 1], and I always try to read and reply when something comes.
Before the hearing, I was also feeling very sick and tired from stress. I have anxiety and sadness all the time. Sometimes I cry alone. I feel lost and afraid. It is very hard to understand government letters and legal things, especially in English. I didn’t want to miss the hearing. I thought I did the right thing by sending the email.
With the 16 June 2025 email, the applicant provided a copy of her passport, a change of contact details form, and that Tribunal’s dismissal decision and the notification of that decision.
On 19 June 2025, the applicant appointed Registered Migration Agent Paul O’Connor (MARN: 0854511) to represent her in dealings with the Tribunal.
On 1 July 2025, Mr O’Connor submitted a statement dated 30 June 2025, signed by the applicant, which states in full:
I was unable to attend the hearing because I was extremely unwell and confined to bed. I experienced severe symptoms consistent with COVID-19, including high fever, intense headache, body aches, and difficulty breathing.
Due to the severity of my condition, I was physically unable to leave my home or even get out of bed. I did not have access to a COVID-19 test at the time, and my symptoms were too severe for me to go out and obtain one. Although I cannot confirm that it was COVID-19, my symptoms were consistent with the illness.
In line with NSW Health advice—which strongly recommends that individuals with COVID-19 symptoms remain at home to avoid spreading the virus—I stayed home to protect others. While there are no mandatory isolation rules in NSW, the recommendation is to remain home until symptoms have resolved.
It took more than a week before I began to feel better, and I needed additional time to fully recover. I respectfully request that my appeal be reinstated, as my failure to attend the hearing was due to serious illness beyond my control.
REINSTATEMENT REQUEST
The review applicant applied for reinstatement of the application on 16 June 2025, which is within 28 days of the dismissal decision.
Assessing whether it is appropriate to reinstate a matter is not limited to only whether there is an adequate explanation for the non-appearance, but requires regard to all of the circumstances of a matter, and reasons advanced by the applicant.[1] Matters relevant to an assessment of the appropriateness of reinstating a matter may include, but are not necessarily limited to: that the applicant had given an explanation for their non-attendance (even if that explanation was not satisfactory); that the applicant had engagement with the Tribunal including after the dismissal of the application; that the applicant suggested they had documents relevant to their merits review application; and the broader context within which the applicant sought a protection visa and the potentially significant ramifications if the Tribunal did not reinstate the application.[2]
[1] Singh v MIBP (2018) 266 FCR 459; DQB22 v MICMA [2024] FedCFamC2G 934.
[2] EKM18 v MICMA [2023] FedCFamC2G 1142.
For the following reasons, the Tribunal does not consider it appropriate to reinstate the application.
The Tribunal considers that applying for a protection visa was likely an significant decision for the review applicant. It also takes into account that the consequences of not reinstating the application would be that the applicant would not have a substantive consideration of the protection claims she has advanced. On their faces, these factors weigh somewhat in favour of a decision that it would be appropriate to reinstate the matter.
Having regard to the context of the visa application and Tribunal review application, the applicant suggested her English skills impeded her ability to present and advance her matter. The Tribunal accepts English is likely not her first language. However, her visa application form, which was completed in English, states she did not have any assistance in completing the form and she did not use an interpreter. Similarly, an application to the Department in December 2021 to obtain work rights on her bridging visa was completed in English and included a statement in English, but also states she did not have any assistance completing the form and she did not use an interpreter. Correspondence from the applicant to the Tribunal following the dismissal of her matter, but prior to the appointment of her migration agent, was also in English of a reasonable standard and there was no suggestion that anyone was writing to the Tribunal on the applicant’s behalf. That correspondence engaged with the Tribunal’s dismissal decision, which on its face suggests she has a reasonable command of English and that she was able to comprehend and respond to the Tribunal’s correspondence. It is also noted that the Tribunal did provide the applicant with instructions on how to engage an interpreter to help her understand its’ correspondence, including by giving these instructions to her in the Thai language, but she has not sought to avail herself of that service. In this context, the Tribunal does not consider the applicant’s English abilities weigh in favour of concluding it is appropriate to reinstate the application.
The Tribunal can accept that the applicant may not have familiarity with Australian migration law, as she suggests, which on its face would offer some support to a decision to reinstate the matter. However, in my view this is tempered somewhat but there being no indication that prior to or following lodgement of visa application in November 2021, the review applicant made any efforts to seek professional assistance in relation to her visa application, including via any pro bono or other legal services. On 15 June 2025, she indicated she did not have a lawyer and seemingly suggested she lacked the funds at that time. However, on 19 June 2025, the applicant did appointment a migration agent to assist in relation to her matter, two weeks after the dismissal decision. She did not comment on why it was that she only decided to engage professional assistance at that point in time. In this context, her unfamiliarity with Australian migration law, and that mostly she has not engaged professional assistance while her protection visa application has remained unresolved, does not supportive of a finding it would be appropriate to reinstate the application.
While her review has been underway, the Tribunal attempted to contacted the applicant a number of times at the email address she indicated she would be contactable at. Following the dismissal, she advised that she “does not check” the email address which she stipulated on the Tribunal review application form - [Email 2], and that “This is maybe why I missed some important information”. There is no record of her having updated her contact details with the Tribunal prior to her scheduled hearing. She did not seek to explain why she decided not to check the email address she asked the Tribunal to use, or why she did not provide the Tribunal with updated contact information. These would seem to be conscious choices in circumstances where she indicated she was aware the Tribunal would wish to provide her with important information. That after the dismissal of her decision the applicant returned two Tribunal forms and the initial dismissal decision and notification, all of which were sent to [Email 2], suggests she was receiving correspondence at that address, but was not responding to it. Moreover, as noted below, the review applicant as not suggested her nonattendance at the hearing was due to not being aware of her hearing, notice of which was also sent to this same email address, but rather owing to her illness and/or a disclination to attend. The applicant’s correspondence and engagement with the Tribunal, before and after the dismissal, does not weigh in favour of it being appropriate to reinstate the application.
There is a lack of coherence in the material submitted as to why the applicant did not attend the hearing. After the hearing and the dismissal, the applicant advised that she did not want to attend the hearing. While the form she made this request on was completed on 28 May 2025, she did not return that form to the Tribunal until 4 June 2025 after her matter was dismissed. This indicates that from at least 28 May 2025 she was both aware of the 4 June 2025 hearing and that she had decided that she did not want to take part in it, despite not informing the Tribunal of this. In the 16 June 2025 email, the review applicant suggests that this email was sent before the scheduled hearing, however Tribunal records confirm it was sent around six hours after. She also wrote that she did not mean to miss the hearing, and that she thought her email, sent after the time of her scheduled hearing and after she had been notified her matter had been dismissed, in which she advised of her intention not to attend, was sufficient.
Following the appointment of her migration agent, her most recent contention in the 30 June 2025 statement is that she could not attend the hearing due to being “extremely unwell and confined to bed” with COVID-19 symptoms. She wrote that she did not have access to a COVID-19 test at the time, as her symptoms were too severe to go out and obtain one. She states that her “failure to attend the hearing was due to serious illness beyond my control”. It is noted that her severe illness due to Covid-19 was not raised with the Tribunal until some four weeks after the hearing, including in the applicant’s email of 15 June 2025, despite her suggesting that her recuperation only took one week.
While not determinative of the appropriateness of whether to reinstate the matter, the Tribunal considers the applicant’s explanations for not attending the hearing to be relevant. The material she has provided suggests two different narratives. First, that since at least 28 May 2025 she had decided that she did not wish to attend the 4 June 2025 hearing and failed to attend on the misapprehension that her request not to take part in the hearing had been agreed to, despite her making this request around six hours after the scheduled hearing. Second, that she intended to and would have attend the 4 June 2025 hearing but for her severe illness, which she is unable to provide corroborative medical evidence in support of. The Tribunal does not consider either explanation to be persuasive. It does not accept the applicant logically understood her attendance at the hearing was not required because she had advised she did not want to attend after the hearing had occurred. Moreover, the very delayed presentation of the suggestion that she could not attend the hearing due to being afflicted with Covid-19, and the absence of any supporting material to corroborate that assertions, raise serious doubt in respect of this explanation. Additionally, the evident tension between these two narratives, that the applicant both erroneously misunderstood she did not need to attend the hearing, and that she had she not been so unwell she would have attended the hearing, in the Tribunal’s view suggests a lack of candour on her part. For these reasons, consideration of the applicant’s explanations for not attending the hearing do not weigh in favour of a conclusion it would be appropriate to reinstate her application.
The Tribunal has had regard to all of the circumstances of this matter, including the reasons advanced by the applicant, when considering whether it is appropriate to reinstate this matter. Factors including the significance of the application, the consequences of dismissing including that the merits of the application will not be considered, and to some extent, the applicant’s lack of familiarity with Australian law, offer some support for determining it would be appropriate to reinstate the matter. However, the Tribunal also affords weight to the applicant’s unpersuasive and conflicting explanations for not attending the hearing. It also has regard to context of the review application, including the review applicant’s conduct in corresponding and engaging with the Tribunal, and her comments regarding her English abilities and representation. On balance, and in light of the above reasons, the Tribunal does not consider it appropriate to reinstate this 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.
Representative for the Applicant: Mr Paul O'Connor (MARN: 0854511)