2303887 (Refugee)
[2025] ARTA 2101
•22 July 2025
2303887 (Refugee) [2025] ARTA 2101 (22 July 2025)
Decision and
Reasons for Decision
Respondent:
Minister for Immigration and Citizenship
Tribunal Number:
2303887
Tribunal:
General Member F Robertson
Date:
22 July 2025
Place:
Perth
Decision:
The Tribunal confirms the decision to dismiss the application
Statement made on 22 July 2025 at 7:39am
CATCHWORDS
REFUGEE – protection visa – China – dismissal decision – failure to attend Tribunal hearing – request for reinstatement – reasonable excuse for absence at hearing – dismissal confirmed – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 42, 99
Migration Act 1958 (Cth), ss 56, 65, 360, 362, 368
CASES
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Singh v Minister for Immigration and Border Protection [2018] FCAFC 184; 266 FCR 45
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
BACKGROUND
The applicant applied for review of a decision to refuse the grant of a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
On 25 June 2025, I dismissed the review application. I did so in circumstances where the applicant had failed to attend the hearing listed for that day.
The applicant was:
(a)notified of that decision and given a copy of a written statement setting out the decision as required by s 368B(5) of the Act;
(b)advised that reinstatement of the application could be sought within 28 days of receiving the dismissal statement; and
(c)advised that that a failure to apply for reinstatement within the 28-day period would result in confirmation of the dismissal decision.
The applicant was also advised:
You may apply to us, in writing, for reinstatement of the application by 23 July 2025. In a reinstatement application you should set out why you failed to appear at the directions hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
On 20 July 2025, the applicant sought reinstatement of the review application. The request was in the following terms:
Dear Sir/Madam,
I am writing to respectfully request the reinstatement of my review application, which was dismissed on 25 June 2025 due to my non-attendance at the scheduled hearing.
The reason I was unable to attend the hearing is that I recently changed my phone number, and I did not receive the Tribunal’s call for the scheduled telephone hearing. I deeply apologize for the oversight and any inconvenience this may have caused.
Additionally, I would like to request that my hearing be rescheduled as a face-to-face hearing rather than a telephone hearing. I believe this would provide a better opportunity for me to present my case and for the Tribunal to fully consider the circumstances surrounding my application.
I assure you that I am committed to attending the rescheduled hearing and will make every effort to be available for any future proceedings. I kindly ask the Tribunal to consider my request for a face-to-face hearing and to reinstate my review application.
Thank you for your understanding and consideration of this request. I look forward to your positive response.
RELEVANT LAW
The power to reinstate an application is set out in s 368C of the Act. Section 368C provides, in part, that:
(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.
Under s 368C of the Act, the Tribunal must either reinstate the application or confirm the decision to reinstate the application. The power to reinstate the application is conditioned upon being satisfied that is ‘appropriate’ to do so. The word ‘appropriate’ connotes two aspects: fitness and propriety.[1] To be ‘appropriate’, something must be both suited to the particular circumstances as well as sensible, right and proper.[2]
[1] Singh v Minister for Immigration and Border Protection [2018] FCAFC 184; 266 FCR 459 at [29] (Colvin J, with whom Kenny and Bromberg JJ agreed).
[2] Singh v Minister for Immigration and Border Protection [2018] FCAFC 184; 266 FCR 459 at [29].
In Kumar,[3] O’Bryan J held in relation to the s 362B of the Act (the former equivalent to the present s 368C):
In my view, the considerations that have been found to be relevant to the exercise of the discretion in s 42(9) of the AAT Act and the FC Rules referred to above are equally relevant to the exercise of the discretion under s 362B(1C) of the Act; namely, whether the applicant has a reasonable or acceptable excuse for their absence at the hearing of their substantive application and whether the application for review has sufficient merit to warrant the reinstatement. 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.
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. That implication arises from the statutory context as referred to earlier. First, by s 360, the Tribunal is required to afford the applicant a hearing at which the applicant can give evidence and present arguments. Second, the power of dismissal under s 362B(1A)(b) is exercisable if the applicant does not appear at the hearing. It necessarily follows from that context that the reason for the failure to appear is a mandatory relevant consideration.
[3] Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479, [47]-[48] (O’Bryan J).
In my view, those observations would apply to now s 368C of the Act.
It is otherwise for the applicant to advance the application for reinstatement and any material relied upon.[4]
CONSIDERATION
[4] Singh v Minister for Immigration and Border Protection [2018] FCAFC 184; 266 FCR 459 at [28].
Whether the applicant has a reasonable or acceptable excuse for their absence at the hearing
The applicant claims that they did not attend the hearing because they had ‘recently changed’ their phone number. When the applicant was notified of the hearing, the notice of the listing advised the applicant as follows:
How do I attend?
The hearing will occur by telephone. The Tribunal will call you on [the applicant’s current phone number]. You do not need to call the Tribunal.
You should ensure that the telephone number listed above is your current number on which the Tribunal can contact you on the day of the directions hearing. If the number you have given the Tribunal is not current, you can change this by emailing [email protected] and quoting your name and the Tribunal number of your application. You should also ensure that you are available for the entire duration of the directions hearing to receive a call from the Tribunal.
Your directions hearing will be held in private. You should appear from a quiet and private place where you will not be disturbed.
I am satisfied that the applicant was clearly on notice of the telephone number that the Tribunal would attempt to contact him on and that if the number was not correct that he should update it. The applicant failed to do so.
Additionally, no information was provided about when the phone number was changed and, perhaps surprisingly in the circumstances, it is of concern that the applicant has not provided the updated phone number to the Tribunal.
I have considered the applicant’s request for an in-person hearing. It is ultimately a question for the Tribunal to determine how a hearing will take place, including by deciding to conduct a direction hearing by telephone. The applicant has not provided any persuasive reasoning to support a claim that a directions hearing could only fairly be conducted in person. It may well be that a final hearing, if one was to have been held, would have occurred in person, but it is not for the applicant to unilaterally determine the mode of hearing. I am not, in the circumstances, satisfied that the fact that the hearing was to be conducted by telephone means that the applicant has a reasonable or acceptable excuse for failing to attend a Tribunal case event.
Having considered the material before me, I am not satisfied that the applicant’s explanation for failing to attend the Tribunal case event, by telephone, is reasonable or acceptable. I do not accept that the applicant has, as he claims, recently changed his telephone number nor do I accept, given the context in which they are made, the applicant’s claims and assurances that they will attend a future hearing.
Whether review application have sufficient merit to warrant reinstatement
I have considered, at an impressionistic level, the merit of the underlying application for review. The applicant claimed to be a homosexual and to face a real chance of serious harm if returned to China for this reason. The applicant’s claims were generalised and lacking in detail. I note that the applicant was invited, pursuant to s 56 of the Act, to provide additional information and detail in support of his application but failed to do so.
I otherwise note that other than file the review application, the applicant has not substantively engaged with the Tribunal. Not only did the applicant fail to attend the hearing on 25 June 2025, but the applicant was asked to complete a pre-hearing information form and failed to do so.
At an impressionistic level, I am not satisfied that the applicant’s review application, without more, is of sufficient merit to warrant reinstatement
Other considerations
I have also considered the impact of reinstatement on the Tribunal and the interests of other parties before the Tribunal.
The Tribunal has very limited and finite resources. There is a very strong public interest in the proper use of the limited resources available for the administration of justice. However, case management is not an end in itself.[5]
[5] Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
The Tribunal presently has a backlog of more than 100,000 applications for review. That backlog is part of the reason why there is an unacceptable delay in the hearing and determination of review applications by the Tribunal, including in the present case.
Whilst I recognise that it is a significant matter to deny an applicant for a protection visa a substantive hearing, in the circumstances I consider that the public interest weighs against reinstatement of the review application.
In the circumstances of the present review application as I have referred to above, I am not satisfied it would be in accordance with the Tribunal’s statutory objectives, or the public interest more broadly, to reinstate the review application.
Whether the review application should be reinstated
Having regard to all the circumstances, the applicant has not satisfied me that it is ‘appropriate’ to reinstate the review application. The dismissal of the review application will, in those circumstances, be confirmed.
Pursuant to s 368C(6) of the Act, the effect of a decision confirming the dismissal of an application is that the decision under review is taken to be affirmed.
DECISION
The Tribunal confirms the decision to dismiss the application.
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