2406604 (Refugee) - [2025] ARTA 2207

2406604 (Refugee) [2025] ARTA 2207 (30 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2406604

Tribunal:General Member D Stewart
Place:Canberra
Date: 30 September 2025
Decision:The Tribunal confirms the decision to dismiss the application.

Statement made on 30 September 2025 at 12:16pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – dismissal decision – failure to attend Tribunal hearing – fears contracting COVID-19 upon return to Vietnam – no further information provided – no reasonable excuse for non-appearance – request for reinstatement and in-person hearing denied – dismissal confirmed – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 36, 99, 102
Migration Act 1958 (Cth), ss 368, 368A, 368B, 368C, 369
CASES
Kumar v MICMA [2023] FCA 479
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 March 2024 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).
On 29 August 2025 the Tribunal dismissed the application under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) as the review applicant did not appear before it at the time and date of the scheduled hearing.
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 applied for reinstatement of the application within 28 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.
Background
The background to this matter is detailed in the dismissal decision made on 29 August 2025. As that decision indicates, the applicant was asked on 15 January 2025 if they had any difficulty participating in a video hearing. The applicant did not respond to that request for information. On 20 June 2025 the applicant, in response to a notice to attend a directions hearing, asked for a full hearing to be listed not before 1 September 2025 to enable them to obtain legal advice. On 23 June 2025 directions were made requiring the applicant to provide a completed Protection Visa Information form by 7 July 2025. The applicant responded on 7 July 2025 asking for more time to complete the form as they were still having difficulty obtaining legal advice. Additional time was granted by the Tribunal, but the applicant did not provide a completed form within the additional time provided or subsequently.
The applicant was also notified on 23 June 2025 that a hearing had been scheduled for 4 August 2025 to be conducted by video. The notification set out the reasons for why the hearing had been scheduled at that time and why it was by video. On the last business day before the hearing, the applicant emailed the Tribunal and stated that they were having trouble accessing the MS Teams application which was to be used for the video hearing. The Tribunal responded on 4 August 2025 to offer to conduct the hearing by phone. The applicant responded on that same day and stated that they did not think a phone hearing would be a good idea because their case was quite sensitive and asked for an in-person hearing in Adelaide where they lived. The applicant did not attend the hearing scheduled for that day and phone calls to the applicant did not connect.
On 4 August 2025 the Tribunal emailed the applicant to notify them of a video hearing scheduled for 25 August 2025. The letter indicated that, if the applicant provided a current phone number, the applicant could be assisted with accessing the hearing by video or the hearing could be conducted by phone. Alternatively, the Tribunal offered the applicant the opportunity of attending the Adelaide registry to use the video facilities available. The letter asked the applicant, if they wanted the Tribunal to change the hearing to an in-person hearing, to provide further information about any additional claims for protection they might have. The applicant did not provide any further information relating to their claims or request to use the video facilities at the Adelaide registry.
On the last business day before the hearing, the applicant again emailed the Tribunal to repeat their statement that they did not know how to use Microsoft Teams and due to the sensitive nature of their claims were requesting an in-person hearing. The applicant did not provide any additional information or otherwise refer to the Tribunal’s previous responses to the applicant’s requests for an in-person hearing. The applicant did not attend the hearing on 25 August 2025 and phone calls to the applicant again did not connect.
On 29 August 2025 the Tribunal dismissed the application under s 99 of the ART Act. The Tribunal considered the various provisions of the Act and ART relevant to providing a hearing, including the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 made under section 36(1) of the ART Act which provides for relevant considerations in determining whether a hearing will be held in-person, by video or by phone. The Tribunal set out its reasons why it was considered reasonable to proceed with the scheduled hearing without a further adjournment to allow the applicant to participate in an in-person hearing.
The applicant was provided with the dismissal decision by email on 29 August 2025. The letter from the Tribunal stated:
You may apply to us, in writing, for reinstatement of the application by 26 September 2025. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
On 26 September 2025, the applicant emailed the Tribunal and stated:
I wish to apply for reinstatement of my application on the basis that it was dismissed in error by the Tribunal.
As stated in my previous email, I did not know how to use Microsoft Teams and a telephone hearing would be inappropriate to deal with the sensitive nature of my protection claims.
Due to the sensitive nature of my protection claims, I am entitled to request a hearing in person so I can present my case properly.
Legislative context
The decision to dismiss the application was made under s 99 of the ART Act. Section 102 of the ART also provides for reinstatement of applications. However, s 368C of the Act relevantly provides:
368C Reinstatement of application or confirmation of dismissal
(1)   This section, instead of section 102 of the ART Act, applies if the ART dismisses an application for review of a reviewable migration decision or a reviewable protection decision.
(2)   If the dismissal is made under one of the following provisions of the ART Act, the applicant may, within 28 days after receiving notice of the decision under subsection 368B(5), apply to the ART for reinstatement of the application:
(a) section 99 (Tribunal may dismiss application if applicant does not appear); …
(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.
Note 1: The ART must, under section 368B, notify the applicant of the decision to reinstate the application.
Note 2: The ART must, under section 368A, notify the applicant of the decision to confirm the decision to dismiss the application
(4)   If the ART reinstates the application:
(a)   the application is taken never to have been dismissed; and
(b)   the ART must conduct (or continue to conduct) the review accordingly.
…
(6)   If the ART confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
The question before the Tribunal following the applicant’s request for reinstatement is therefore whether it considers it appropriate to reinstate the application or else to confirm the decision to dismiss the application.
In determining whether to reinstate the application, the Tribunal is required to consider whether the applicant has a reasonable excuse for their absence at the hearing.[1] It may also be relevant to consider whether the application for review has sufficient merit to warrant reinstatement, the applicant’s conduct generally in progressing their review application and any prejudice to either party or to the wider public if the application is reinstated.[2]
[1] Kumar v MICMA [2023] FCA 479 at [48].
[2] Kumar v MICMA [2023] FCA 479 at [47].
Consideration
The applicant’s email of 26 September 2025 is in similar terms to their previous requests for the Tribunal to hold an in-person hearing. It does not engage with the reasons in the dismissal decision for the Tribunal’s refusal of their request to hold an in-person hearing. The applicant’s reasons for not attending the hearing because they did not know how to use Microsoft Teams and a telephone hearing would be inappropriate due to the sensitive nature of their protection claims were addressed by the Tribunal in the dismissal decision and not considered a reasonable basis to schedule an in-person hearing. For the same reasons I do not consider those reasons to be a reasonable excuse for not attending the hearing or the basis for an in-person hearing to be scheduled if the application was re-instated.
As discussed in the dismissal decision, the applicant was offered assistance with the use of the Microsoft Teams application and presented with the alternatives of conducting the hearing by phone or arranging for them to attend the Adelaide registry. The claims set out by the applicant in their application for the visa are set out in general terms relating to contracting Covid-19 upon return to Vietnam. I do not consider these claims to be sensitive in nature so as to make a video or telephone hearing inappropriate. The applicant has had numerous opportunities to provide the Tribunal with further information relating to their claims to protection or reasons why an in-person hearing should be held. I therefore do not consider the reasons set out by the applicant in their request for reinstatement sufficient for an in-person hearing to be provided.
Given the passage of time since the application for the visa and the absence of any further information from the applicant as to why they continue to fear harm relating to contracting Covid-19 upon return to Vietnam, I consider the application to not have sufficient merit to warrant reinstatement. I also note that the applicant has not responded to the Tribunal’s request to provide a ‘Response to hearing notice’ form in each of the hearing notices. They have not provided an updated phone number on which they might be contacted. The applicant’s correspondence with the Tribunal has also consistently occurred on the business day prior to the relevant case event. While I acknowledge that there is limited prejudice to the respondent in reinstating the application and providing for a further hearing, given the applicant has not provided any further reasons justifying an in-person hearing, reinstatement would merely further delay the resolution of this matter.
I have considered that the applicant is applying for a protection visa and the potential consequences of this decision to dismiss their application. However, as I am not satisfied there is a reasonable excuse for the applicant’s absence from the hearing and given their lack of timely engagement with the Tribunal and limited efforts to advance their case, I do not consider it appropriate to reinstate the 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.