2421707 (Refugee) - [2025] ARTA 2097

2421707 (REFUGEE) [2025] ARTA 2097 (16 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2421707

Tribunal:General Member N Schmitz
Place:Melbourne
Date: 16 July 2025
Decision:The Tribunal confirms the decision to dismiss the application.

Statement made on 16 July 2025 at 2:47pm
CATCHWORDS
REFUGEE – protection visa – Fiji – dismissal decision – failure to attend Tribunal hearing – dismissal confirmed – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 99
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Migration Act 1958 (Cth), s 368
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 11 June 2024 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).
On 17 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.
The 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 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
On 7 July 2024, the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the decision. In support, he provided a letter responding to various issues identified in the delegate’s decision record.
The AAT was abolished and replaced by the Administrative Review Tribunal (the ART, hereafter referred to as the Tribunal) on 14 October 2024. The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (“the Transitional Act”) provides that review applications which were not finalised before 14 October 2024 are deemed to be applications for review by the ART and are to be continued and determined as such.
On 15 April 2025, the Tribunal emailed the applicant advising that his file was being prepared for allocation to a Tribunal Member and asked him to complete and submit an enclosed pre-hearing information form within seven days of receiving the email.
The pre-hearing information form asked the applicant various questions including about the applicant’s availability, that is, whether there were any dates in the next three months that he or any other participants would be unable to attend the hearing and appear at the Tribunal; whether there was any additional information or documents he sought to provide; the number of attendees such as applicants, witnesses or a representative and/or support person; and if the applicant would experience any difficulties attending an in-person hearing such as health problems or disability.
The Tribunal did not receive a response from the applicant.
On 21 May 2025, the applicant was invited to appear before the Tribunal on 17 June 2025 at 9:30 am (VIC time). The invitation was sent to the email address provided by the applicant in his application for review, that is, [Email address 1]. The Tribunal notes that this is the same email address the applicant nominated to receive communications with the Department. It is also the same email address the applicant has used to communicate with the Tribunal including seeking reinstatement of his review application discussed below.
The hearing invitation instructed the applicant to arrive at least 15 minutes before the start of the hearing (i.e. 9:15 am). The hearing notice stated that if the applicant 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.
The hearing invitation further advised the applicant that if he was unable to attend the scheduled hearing or would prefer that the hearing take place in a different way (i.e. by telephone or video) he was to advise the Tribunal as soon as possible. He was advised that the Tribunal would only make changes if satisfied that it was reasonable and there was a good reason for doing so. The applicant was further advised that an adjournment sought on the day of the hearing would not be granted unless there were exceptional reasons.
The applicant was requested to return a response to hearing notice within seven days of receipt of the letter. The applicant did not return a signed response to hearing notice indicating he would participate at the hearing.
As an added precaution, on 10 June 2025, the Tribunal sent the applicant a SMS hearing reminder about the hearing to the applicant’s mobile phone. The message sent was:
The message sent was:
REMINDER: Your ART hearing is on 17/06/25. 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
The Tribunal did not receive any undeliverable notification.
On 16 June 2025, the Tribunal sent a further SMS hearing reminder about the hearing to the applicant’s mobile phone. The message sent was:
The message sent was:
REMINDER: Your ART hearing is on 17/06/25. 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.
The Tribunal did not receive any undeliverable notification.
On 17 June 2025, the applicant failed to attend the hearing at the scheduled time and place. The applicant did not contact the Tribunal to request a postponement of the hearing or provide any reason why he could not attend at the scheduled time.
The Tribunal declared a ‘no show’ at 9:45 am, thirty minutes after the applicant was instructed to appear at the Tribunal. An initial dismissal statement of decision was made on 17 June 2025 at 11:07 am.
On 18 June 2025 at 11:55 am, the Tribunal received an email purportedly from the applicant but from an unauthorised email address which included an attachment that could not be opened by the Tribunal. The email requested a decision on the papers. As the email was from an unauthored sender the Tribunal did not recall the initial dismissal and allowed the applicant the opportunity to apply for a reinstatement.
On 18 June 2025 at 12:38 pm, the applicant was advised that on 17 June 2025 the Tribunal received an email purportedly from the applicant from an unauthorised email address which included an attachment. The applicant was instructed to send the Tribunal correspondence, including that in the email dated 17 June 2025 and the attachment from the email address he nominated to the Tribunal [Email address 1]. The Tribunal also told the applicant that if his contact details had changed he was to notify the Tribunal as soon as possible.
The Tribunal did not receive a response from the applicant.
On 15 July 2025, the applicant attended the Tribunal in-person and presented to the registry counter where he advised a Tribunal staff member that he had a hearing. The Tribunal staff member advised the applicant that his hearing had been cancelled. The applicant then produced his initial dismissal decision notification and advised that he wished to make a request for reinstatement. A Tribunal staff member provided the applicant with a pen and paper.[1] The applicant wrote the following:
[1] Tribunal Case Note Numbers 4, 5 and 6.
[The applicant’s name and contact details including Email address 1]
15/07/2025
RE: Request to reschedule hearing for case #2421707#
I am writing to request a new hearing date for my scheduled appearance on concerning to you in relation to the above mentioned case.
Unfortunately, I was unable to attend the hearing due to unforeseen illness.
I was experiencing severe flu and syptoms [sic]. As a result, I was unable to attend the hearing and prepare adequately for my case.
I am eager to present my case and would greatly appreciate the opportunity to reschedule.
Would it be possible to schedule a new hearing date.
I am available anytime.
Thank you for consideration my request. I look forward to hearing from you soon.
Sincerely,
[Applicant]
The applicant did not attach any medical evidence to support that he had been medically unfit to attend the hearing scheduled approximately one month earlier.
The Tribunal notes the applicant did not acknowledge or make any reference to the email sent from the unauthorised email address.
CONSIDERATION OF REINSTATEMENT APPLICATION
Where a review has been dismissed under s 99 of the ART Act because the applicant failed to appear at a hearing, and an application applies within the prescribed timeframe to reinstate the review, the Tribunal must either, if it considers it appropriate to do so, reinstate the review or confirm the decision to dismiss the application: s 368C(3) of the Migration Act.
The Tribunal is aware the review concerns a decision refusing to grant the applicant a protection visa. By lodging a protection visa, the applicant is claiming, broadly, that there is a risk he will be harmed in Fiji. The Tribunal is aware that in the event that the applicant was successful in his protection claims, serious consequences may flow to the applicant from the failure to reinstate the review. As serious as those consequences may be in the event that the protection claims were established, and having considered the reasons provided for the applicant’s non-appearance at the hearing, the Tribunal is not satisfied that it is appropriate to reinstate the review for the following reasons.
First, the applicant’s email address has remained the same since the time of lodgement of his review application with the Tribunal on 7 July 2024. This is the same email address that the applicant has identified to the Tribunal in his reinstatement request of his review application. The Tribunal’s case records also disclose that the applicant’s mobile number is the same as the number noted in his reinstatement application. This is the same phone number he provided to the Department at the time of lodging his visa application and applying for a review application with the Tribunal. The Tribunal finds that there have been no changes to the applicant’s contact details.
The hearing invitation to appear before the Tribunal was sent to the applicant’s current email address. There is no evidence to indicate that the email was not received by the applicant. The Tribunal further notes that two SMS hearing reminders were sent to the applicant’s mobile phone and the Tribunal did not receive any undeliverable notifications. The Tribunal is satisfied by the applicant’s conduct in presenting to the Tribunal in-person stating that he had a hearing, that he was aware of the Tribunal hearing.
Second, if the applicant sought an adjournment, he was to advise the Tribunal as soon as possible and provide reasons for doing so. The applicant did not contact the Tribunal to request a postponement of the hearing or provide any reason why he could not attend at the scheduled time. He also did not request that the hearing be converted to an alternative mode, such as a video or telephone hearing, to avoid travel and accommodate any illness. This is despite being given repeated reminders about the hearing and being advised how he could contact the Tribunal. Rather, the applicant contacted the Tribunal approximately one month after the hearing (and learning of the reasons for the initial dismissal) claiming he had been ill.
Third and significantly, the Tribunal has considered the applicant’s claims that he had a ‘unforeseen illness’ but regards it as vague, unsatisfactory and unsupported by corroborative evidence. The applicant does not state when he became ill. The applicant does not state how long his symptoms lasted for. The applicant has provided no medical evidence to support his claims that he was medically unfit to attend the hearing. The applicant also does not explain why he did not contact the Tribunal prior to the hearing to seek an adjournment. He also does not explain why he did not contact the Tribunal proximate to the hearing once better to explain his personal circumstances. Overall, the Tribunal considers his reasons to be scant, unconvincing and unsupported.
The applicant has not provided any other explanation for his failure to attend the scheduled hearing on 17 June 2025.
For the reasons above, the Tribunal finds that the applicant does not have a reasonable or acceptable excuse for his failure to attend the scheduled hearing.
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.