2315822 (Refugee) - [2025] ARTA 1226

2315822 (REFUGEE) [2025] ARTA 1226 (19 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2315822

Tribunal:General Member E Rutherford
Place:Adelaide
Date: 19 February 2025
Decision:The Tribunal confirms the decision to dismiss the application.

Statement made on 19 February 2025 at 9:26am
CATCHWORDS
REFUGEE – protection visa – Vietnam – dismissal decision – failure to attend Tribunal hearing – request for reinstatement – subsequent request for withdrawal – no reasonable or acceptable excuse for absence – direction to provide telephone number – dismissal confirmed – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, ss 9, 42, 79, 99, 106
Federal Court Act 1976, s 31
Migration Act 1958, ss 5AAA, 348, 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 decisions made by a delegate of the Minister for Home Affairs on 12 September 2023 to refuse to grant the visa applicants Protection (Class XA) Subclass 866 visas under the Migration Act 1958 (Cth) (the Act).
On 15 January 2025 I dismissed the application under s 99 of the Administrative Review Tribunal Act 2024 (Cth) as the review applicants did not appear before it at the time and date of the scheduled hearing.
The review applicants were 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 applicants were 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. I rely on my reasons as set out in the interim dismissal decision, and do not repeat them here.
The review applicants applied for reinstatement of the application within 28 days after receiving notice of the decision. For the following reasons, I do not consider it appropriate to reinstate the application.
The request made by the applicants on 11 February 2025 was in the following terms:
We respectfully request that the Tribunal reinstate our case so as to give us an opportunity to provide supporting evidence.
We did not attend the last hearing because we were not ready and that we did not have a lawyer.
On 13 February 2025 the applicants sent a further email asking whether their request for reinstatement had been approved, as they understood from consulting the community that they were running out of time to ‘lodge an appeal with the Federal Court’. On 17 February 2025, they emailed again, saying:
As the Tribunal still has not responded to our reinstatement and our time is running out to lodge a court appeal. We would like to withdraw such reinstatement request.
The Tribunal responded to the applicants’ email on 17 February informing them that the reinstatement request was still under consideration, and that their time limit to seek judicial review at the Federal Circuit and Family Court of Australia had not commenced to run. The Tribunal asked the applicants to clarify whether they still wished to withdraw their request by the end of 18 February 2025, otherwise the Tribunal would proceed to make a decision. The applicants sought further clarification about when the 35 day time limit would commence, and the Tribunal again clarified on 17 February that it would only commence once the Tribunal had made a final decision, which it had not yet done. The applicants were asked to inform the Tribunal of their intentions as soon as possible.
The applicants have not confirmed their wish to withdraw their reinstatement request, and I consider that the request was made based on a misunderstanding of the law. The applicants’ withdrawal was conditioned by their wish to seek judicial review of any confirmation decision made by the Tribunal, and their concern that they would lose that opportunity. Their email correspondence does not demonstrate a desire for the Tribunal not to reinstate their application, and accordingly I consider they are still seeking that outcome. I have not drawn any inferences about their reinstatement request based on their later correspondence, and I consider it appropriate to still consider it in these circumstances.
In making my decision I rely on the guidance of the Federal Court in the case of Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479 at [47]:
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.
I also consider the meaning of the word appropriate in this context as defined in Singh v Minister for Immigration and Border Protection:
the word “appropriate” connotes two aspects: fitness and propriety. That is, in order to be “appropriate”, something must be both suited to the particular circumstances as well as sensible, right and proper.[1]
[1] Singh v Minister for Immigration and Border Protection [2018] FCAFC 184; (2018) 266 FCR 459, at [29].
I consider both cases to be equally relevant to the new provision of s 368C(3) of the Act given the provisions considered in them use the same wording. I have not treated the factors identified in Kumar as exhaustive or mandatory relevant considerations, but as no other considerations have been put forward by the applicants, I have adopted those four suggested factors in my decision.
Excuse for absence at the hearing
The applicants stated that they failed to attend the hearing because they were not ready and did not have a lawyer. I infer that their reference to readiness relates to their ability to present their evidence.
The applicants have had an active review before the Tribunal since 3 October 2023. They have been aware that the Tribunal wished for them to attend a hearing since at least 3 December 2024, when they claimed to have found an email from the Tribunal in their junk email folder. No evidence has been provided to substantiate this claim, and it is possible that the applicants have in fact been aware of the Tribunal’s communication about a hearing since 14 November 2024, when they were sent the first invitation to a hearing.
Giving them the benefit of the doubt about this fact however, and as I found in the interim dismissal decision, I consider the applicants have had sufficient time to consult and/or appoint a legal representative. They have now had an additional 28 days from the date of the interim dismissal decision but have failed to do so.
In my interim dismissal, I made it very clear that I would expect their request for reinstatement to be made by a migration agent or legal representative, or demonstrate evidence of their attempts to obtain representation. The reinstatement request does not do this, and is made in the barest of language. It does not address any of the points raised in the interim dismissal decision (with more of this considered under the heading ‘conduct in progressing the application’ below).
For the above reasons, I do not accept that the applicants have a reasonable or acceptable excuse for their absence at the hearing on 15 January 2025. This weighs against the reinstatement of their application in my consideration.
Conduct in progressing the application
In the interim dismissal decision, I set out the timeline of the applicants seeking two late adjournments to hearings scheduled on 4 December 2024 and 15 January 2025. Both adjournments requests were made the day before the hearing.
On the same day as the second adjournment request, the Tribunal informed the applicants that their request had been denied, and that the hearing would be proceeding. The notice confirmed the attendance of a Vietnamese interpreter at the hearing, and informed them that if they failed to attend, the Tribunal may make a decision on the review without taking any further action to allow or enable them to appear before it, or it may dismiss the application.
In their reinstatement request, the applicants indicated an election not to attend despite this warning because they were not ready. The applicants could have instead attended the hearing and explained in person why they were not able to present their evidence, but they did not do so.
I also set out in the interim dismissal a troubling timeline of efforts made by the Tribunal to obtain a contact telephone number for the applicants. While it is not a legal requirement that applicants before the Tribunal provide a telephone number, doing so enables the Tribunal to ensure that applicants can be communicated with regarding scheduled hearings or other important matters. The applicants have continuously ignored requests for a telephone number, including by not providing one in their reinstatement request, and by ignoring a direction made under s 79(1) of the Administrative Review Tribunal Act 2024 (ART Act). It was made clear in the interim dismissal decision that I would expect them to provide one.
I consider that cumulatively, all of the applicants’ interactions with the Tribunal demonstrate a lack of any real intention to engage with the Tribunal process. I consider their actual intention to be an attempt to defer, for as long as possible, the proper consideration of their application.
For the above reasons, I consider that the conduct of the applicants weighs against the reinstatement of their application.
Merits of the application
I place limited weight on the merits of the application before the Tribunal, because the conduct referred to above has prevented the Tribunal from fully appreciating what the merits are. All that is before the Tribunal about the applicants’ reasons for claiming protection are contained within the protection visa application.
In the protection visa application, submitted on 22 December 2022, the applicants stated that they left Vietnam to visit relatives in Australia. In response to the question about whether they had experienced harm in Vietnam, they stated ‘no’. The reasons for claiming protection were that, if they returned to Vietnam, they could be infected by the Coronavirus. They stated that other people in their village had died of the illness. They said that the authorities could do nothing to help them because Vietnam is a poor country with a bad health system.
The delegate’s decision, dated 12 September 2023, explained that the claim raised by the applicants did not raise any grounds that were capable of falling within the definition of a well-founded fear of persecution because it was not one of the five grounds contained within s 5J(1)(a). The delegate also found that any harm caused by the Coronavirus did not contain any intentional element to inflict harm such that it could constitute cruel or inhuman treatment or punishment, or degrading treatment or punishment. It did not fall within any other of the exhaustive definitions of significant harm contained within s 36(2A) of the Act.
The applicants have been on notice since the making of that decision that their claims might not lead to the grant of a protection visa. The applicants submitted a copy of the delegate’s decision record with their application for review before the Administrative Appeals Tribunal (AAT). In the acknowledgement letter from the AAT dated 6 October 2023, the applicants were informed that if they had material or written arguments they wished it to consider, they should provide it as soon as possible. In both hearing notices sent, the applicants were asked to provide any documents or written arguments seven days prior to the scheduled hearing.
At any time between 12 September 2023 and the Tribunal’s decision, the applicants could have submitted evidence or submissions about why they feared return to Vietnam.
As they have not done so, I am left only with the information contained within the protection visa to make an assessment of the merits of their application. I am also guided by s 5AAA of the Act which makes clear that it is the responsibility of the applicants to specify all particulars of their claim, and to provide sufficient evidence to establish it.
I do not consider the guidance referred to in Kumar requires me to make a full assessment of the merits of the application. This is not a decision under s 106(5) of the ART Act – a decision that could have been made, but was not for reasons set out below. Rather, it is akin to the ‘no reasonable prospect’ test in a summary dismissal matter such as that contained within s 31A(1) of the Federal Court Act 1976 (FCA). Naturally a very clear difference is that, under the FCA, an application for summary dismissal is required to be made by a party for the Court to make a determination that an applicant has no reasonable prospect. No party is making such argument now.
As was stated by the High Court in Spencer v Commonwealth:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.[2]
[2] Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118, at [25].
On the facts before me, I cannot see that the applicants have any reasonable prospect of being successful in their review. Their claim refers only to harm from the Coronavirus. The delegate’s reasons explain why this claim would be likely to fail. The applicants have failed to put forward any other facts which might put this in dispute.
I do not make a determination that they do not meet the criteria for the grant of a protection visa because I am only making a decision about whether it is appropriate to reinstate their application. However, the merits of their application weigh slightly against reinstatement in my consideration.
Prejudice to the parties or public
The Minister is a non-participating party to this proceeding: s 348A of the Act. I do not consider there to be any prejudice to the Minister from my decision, and I give this no weight.
Similarly, I do not consider there to be any prejudice to the wider public if I do or do not reinstate the application, and I give this no weight.
By confirming a decision to dismiss, the Tribunal is denying the applicants the ability to have their matter determined substantively. I appreciate the potentially serious consequences of my decision to confirm the decision to dismiss their application. The most apparent and serious consequence is that, if they have any other claim for protection not previously stated or determined by the delegate, they will lose the opportunity to present it. It is possible that a meritorious application could be dismissed, and this is an outcome to be avoided. It is the reason why I previously allowed one adjournment of their hearing, why I did not dismiss their application when they failed to comply with the direction given under s 79(1) of the ART Act, and why I elected to dismiss their application when they failed to attend the second hearing, rather than to decide it on its merits immediately, pursuant to s 106(5) of the ART Act.
The potential for prejudice to the applicants weighs in favour of reinstatement of the application. However, I consider that the other factors outweigh this factor, particularly in circumstances where I am not satisfied that, even if I were to reinstate the application, the applicants would take the opportunity to progress their application for review. I consider it would merely be a further delay to the Tribunal conducting its review process, which would not promote the objective of the Tribunal as set out in s 9 of the ART Act to resolve applications as quickly as possible. This is of course not the only objective that has influenced my decision, and I have balanced it with the need to ensure that the Tribunal has been fair, just, and accessible.
I do not consider it appropriate to reinstate the applications for all of the above reasons. Having reached that conclusion, I am required by s 368C(3)(b) of the Act to confirm my earlier decision.
The decision to dismiss the application is confirmed. This has the effect that the decisions under review are taken to be affirmed: s 368C(6) of the Act.
DECISION
The Tribunal confirms the decision to dismiss the application.