2424665 (Refugee) - [2025] ARTA 858

2424665 (Refugee) [2025] ARTA 858 (11 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2424665

Tribunal:General Member N Schmitz
Place:Melbourne
Date: 11 June 2025
Decision:The Tribunal confirms the decision to dismiss the application.

Statement made on 11 June 2025 at 1:24pm

CATCHWORDS
REFUGEE – protection visa – Fiji – dismissal decision – failure to attend Tribunal hearing – dismissal confirmed – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, s 369
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 July 2024 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).
On 12 May 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 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 24 July 2024, the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the decision. 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 29 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.
On 30 April 2025, the applicant by email returned a signed pre-hearing information form. In it, he indicated that he had no unsuitable dates for hearing, that he did not rely upon any further information and/or documents and/or witnesses to advance his case and would not experience any difficulties if invited to an in-person hearing. The applicant further declared that he had read and understood the contents of the document.
On 6 May 2025, the applicant was invited to appear before the Tribunal. The invitation was sent to the email address provided by the applicant in his application for review, that is,[email address]. The Tribunal notes that this is the same email address the applicant used to lodge his protection visa application and was the same email address he nominated to receive communications with the Department. This is the same email address the applicant has used to communicate with the Tribunal including returning his pre-hearing information form referred to above and 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. 11:45 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 applicant was requested to return a response to hearing invitation. The applicant did not return a signed response to hearing invitation indicating he would participate at the hearing.
On 9 May 2025, the Tribunal as an added precaution, sent the applicant a SMS hearing reminder about the hearing to the applicant’s mobile phone. The message sent was:
REMINDER: Your ART hearing is on 12/05/25. 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 12 May 2025, the applicant failed to attend the hearing at the scheduled time and place.
The Tribunal declared a ‘no show’ at 12:30 pm, forty-five minutes after the applicant was instructed to appear at the Tribunal.
On 12 May 2025 at 12:36 pm the applicant telephoned the Tribunal. The Tribunal case note reads as follows:
[Applicant] called to inform the tribunal that he forgot to attend todays' hearing and will place his reasons in writing
On 15 May 2025 at 11:23 am the applicant emailed the Tribunal and said:
Dear Officer,
I have missed the hearing on the 12 May 2025 because my phone had a problem the day that it should be interviewed. I am now using the new phone and most of the documents had vanished. Is it possible for me to have a notice of hearing for one more time and can you send me a reminder to my phone number at[mobile number].
Thank you.
Regards, [Applicant]
The applicant did not attach any evidence to support that his phone had experienced any technical problems on the day of the hearing. The applicant also did not identify how his phone prevented him from appearing in-person before the Tribunal, noting that the hearing invitation was emailed to him in advance of the hearing. He did not explain why he was able to contact the Tribunal by telephone on the day of the hearing where he indicated he was aware of the hearing yet claimed he missed the hearing due to having a problem with his phone.
On 27 May 2025, the applicant emailed the Tribunal further information regarding his protection claims (i.e. Fiji is a Nation of Coup d’etat).
CONSIDERATION OF REINSTATEMENT APPLICATION
The applicant’s email address has remained the same since the time of lodgement of his review application with the Tribunal on 24 July 2024. This is the same email address that the applicant has emailed the Tribunal seeking a reinstatement 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 notice 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 is satisfied by the applicant’s conduct in telephoning the Tribunal on 12 May 2025 that he was aware of the Tribunal hearing.
In considering whether to reinstate the application for review, the Tribunal has carefully considered the applicant’s explanation for his failure to attend the hearing.
The applicant first claimed to the Tribunal that he ‘forgot’ to attend the hearing and telephoned the Tribunal to advise the same.
Three days later and after reading the Tribunal’s reasons for the initial dismissal, the applicant then claimed that he missed the hearing ‘because my phone had a problem’ on the day of the hearing and documents ‘vanished’. It is unclear what documents he is referring to but presumably the hearing invitation. No corroborative evidence was provided to support these claims and the applicant did not provide any further information regarding why he was unable to appear before the Tribunal in-person on the day; despite telephoning the Tribunal indicating he was aware of the hearing.
The Tribunal has serious concerns regarding the credibility of the applicant’s claims that he did not attend due to problems with his phone. First, it was not raised on the day of hearing when the applicant first contacted the Tribunal. Second, his claims of having a problem with his phone are inconsistent with the applicant’s original claims that he merely ‘forgot’ about the hearing. The Tribunal considers that if the problem had occurred as claimed it would have been indelible or approaching indelible. The Tribunal finds that it is not something that someone in the applicant’s position would have forgotten. Third, no credible evidence was provided to support that the applicant experienced problems with his phone. This could have taken the form of a screenshot showing an inability to access his email inbox or a receipt showing the purchase of a new mobile phone replacing his old phone. Fourth, the applicant does not explain why he was able to telephone the Tribunal on the day of hearing indicating he was aware of the hearing yet simultaneously claimed he missed the hearing due to a problem with his phone. Fifth, even if the Tribunal were to accept that he had a problem with his phone on 12 May 2025 (which it does not), the applicant would still have been able to see the Tribunal’s hearing invitation sent on 6 May 2025 and the SMS hearing reminder sent on 9 May 2025 and been aware of the hearing. This assessment is supported by the applicant’s conduct in telephoning the Tribunal on the day of hearing stating he was aware of the hearing. For these reasons the Tribunal does not accept the applicant’s claims that he had a problem with his phone and that this prevented him from attending the hearing.
The applicant has not provided any other explanation for his failure to attend the scheduled hearing on 12 May 2025.
For the reasons given above, the Tribunal finds that the applicant does not have a reasonable or acceptable excuse for his failure to attend the scheduled hearing.
The Tribunal is mindful that the applicant is applying for a protection visa and the claimed consequence of its decision for him. Significant as those consequences may be, the Tribunal does not consider it appropriate to reinstate the application for the reasons described above.
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.