2302924 (Refugee) - [2025] ARTA 1436

2302924 (REFUGEE) [2025] ARTA 1436 (21 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2302924

Tribunal:General Member S Waring
Place:Brisbane
Date: 21 March 2025
Decision:The Tribunal confirms the decision to dismiss the application.

GENERAL MEMBER S WARING
STATEMENT MADE ON 21 MARCH 2025 AT 12:00PM
CATCHWORDS
REFUGEE – protection visa – Malaysia – dismissal decision – failure to attend Tribunal hearing – dismissal confirmed – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, s 99
Migration Act 1958, ss 65, 386
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 10 February 2023 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).
On 6 February 2025 the Tribunal dismissed the application under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) as the review applicant did not appear before it at the time and date of the scheduled hearing.
On 10 February 2025 the review applicant was notified via email of the dismissal decision and given a copy of a written statement setting out the decision, in accordance with s 368B(5) of the Act. 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. As such, the Tribunal may either reinstate the application, if considered appropriate to do so, or confirm the dismissal: pursuant to s 368C of the Act. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.
Reinstatement request
On 6 March 2025, and within 28 days after receiving notice of the decision, the applicant notified the Tribunal of the appointment of Mr Michael Huang as his representative. In a covering email to this notification (using a form MR5), Mr Huang stated as follows:
“We write on behalf of our client [named] applying for reinstatement of the hearing you dismissed on 10 February 2025.
[The applicant] lived in [Town 1], QLD until December 2024 when he moved to [Town 2]. He lost his phone when moving house; thus, not being able to respond appropriately to your notice.
He stressed that he never did intend to miss the hearing.
We shall be grateful if you will reinstate the hearing so that he can make submissions to ART.”
No statement by the applicant, or other evidence, is provided in support of the request for reinstatement which emanated from the email address of his representative ([email deleted]). Whereas the MR5 form Is signed by the applicant, the reinstatement request accompanying it is written in the third person and is not signed (or otherwise endorsed) by the applicant.
General Communication History
The review applicant contacted the Tribunal on 2 March 2023 (using the email address [Email 1]) and no further contact was made by him in relation to the review until 6 March 2025 when the request for reinstatement was made on his behalf by his newly appointed representative.
The email address cited above, corresponds with the contact details provided by the applicant in his review application. This has been the email address utilised by the Tribunal up until Mr Huang’s appointment notified on 6 March 2025.
The applicant provided a telephone number to the Tribunal in his review application and this number was utilised by the Tribunal up until Mr Huang’s appointment notified on 6 March 2025.
On 6 March 2023 the Tribunal sent a letter to the applicant, acknowledging receipt of his application. The Tribunal provided information to the applicant which included informing him, that if his contact details changed or his personal circumstances changed, to immediately notify the Tribunal. As observed above, the Tribunal sent the letter and information to the applicant’s notified email address.
According to Mr Huang’s email of 6 March 2025 the applicant changed his residential address in December 2024. The applicant did not engage with the Tribunal to update his contact details prior to the email from his representative.
On 6 March 2023 the Tribunal also sent an information sheet to the applicant about the application process, which included informing him that he could provide the Tribunal with further material to support his application.
The applicant did not engage with the Tribunal to provide any further materials.
Notification of hearing
On 20 November 2024 (prior to the date on which it is submitted that the applicant lost his phone) the Tribunal used the applicant’s notified email address to advise him that his “matter has been constituted to a Member and the Tribunal intends to hold a hearing soon and we note that you currently reside in [Town 1], Queensland. If you have changed your address, please advise us immediately by email.” Regarding his preferred modality for the hearing the email stated “we request that you provide your responses by Monday, 25 November 2024.”
The applicant did not engage with the Tribunal to advise his preferred modality for the hearing.
The Tribunal finds that the applicant had, in November 2024, been put on notice that the hearing would be held soon.
On 20 December 2024 the applicant was notified to appear before the Tribunal on 24 January 2025 at 11.30am. The hearing notice stated that if he did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
Reasons for non-appearance
The reinstatement request states that the applicant moved to [Town 2] sometime in December 2024. There is no evidence before the Tribunal to establish that the applicant moved away from [Town 1] to [Town 2] (or at all).
The reinstatement request states that the applicant lost his phone sometime during the claimed relocation. Regarding this event, there is no evidence before the Tribunal to establish that the applicant lost his phone prior to being notified of the hearing date (or at all). For example, there is no evidence provided:
·of any report or lost-property enquiry by the applicant in relation to the lost phone.
·from either the applicant’s phone or email account records demonstrating that he sent no email or SMS messages during the period he was (allegedly) without his phone.
·of the applicant purchasing a replacement phone.
Mr Huang’s email states that the applicant was unable to respond appropriately to the hearing notice. Mr Huang does not submit however, that the applicant did not receive the hearing notice - only that the applicant was unable to respond to it.
The Tribunal notes that the hearing notice (sent via email not by SMS to the Applicant’s phone) could have been accessed by the applicant on another computer device.
Based on the available evidence, the Tribunal does not find that the applicant did not access his email or phone prior to the hearing date of 24 January 2025.
Based on the available evidence, the Tribunal does not find that the applicant did not receive the hearing notice sent on 20 December 2024.
Tribunal contact regarding the hearing
An officer of the Tribunal telephoned the applicant (using the number he had notified) on 13 January 2024. This call was not answered by the applicant but a voicemail message was left reminding him of the details of the listed hearing.
The Tribunal sent two separate SMS reminders to the applicant (using the number he had notified) on 17 and 23 January 2025 both messages stated:
REMINDER: Your ART hearing is on 24/01/25. 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. were also sent to the review applicant about the hearing.
Tribunal records show that no delivery failure occurred with either SMS message.
As the Tribunal has not accepted that the applicant lost his phone, it is not accepted that he was unaware of the Tribunal’s telephone reminders about the hearing.
Based on the available evidence, the Tribunal does not find that (as claimed) the applicant was unaware of the date, time and place of the listed hearing.
Consideration
In considering whether it is appropriate in the circumstances to reinstate this dismissed application, I have taken into account the applicant’s stated reasons for failing to appear at the hearing and also his conduct generally in progressing his application for review. I have taken into account that the applicant is applying for a protection visa and the consequences of dismissing his application may be significant.
In the circumstances of the case, and based on the available evidence, I am satisfied and find that the applicant does not have a reasonable or acceptable excuse for failing to appear at the Tribunal hearing.
For the reasons above, the Tribunal concludes that it is not appropriate to reinstate this application.
The decision to dismiss the application is confirmed. It follows that the decision under review is taken to be affirmed.
DECISION
The Tribunal confirms the decision to dismiss the application.
Representative for the Applicant: Mr Michael Huang (MARN: 0639694)