2424814 (Refugee)

[2025] ARTA 1809

2424814 (Refugee) [2025] ARTA 1809 (25 August 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2424814

Tribunal:Max Bruce

Place:Adelaide

Date:  25 August 2025

Decision:The Tribunal confirms the decision to dismiss the application in accordance with section 368C(3)(b) of the Migration Act 1958 (Cth).

Statement made on 25 August 2025 at 11:56am

CATCHWORDS

REFUGEE – protection visa – Philippines – change of representative – request for reinstatement – no reasonable explanation – application for review dismissed

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth), s 99
Migration Act 1958 (Cth), ss 368B, 368C, 369, 379A

CASES

EKM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1142
FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1025
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Singh v Minister for Immigration and Border Protection [2018] FCAFC 184
Thanthrige v Minister for Immigration and Border Protection [2018] FCA 1230

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.

Reinstatement Decision

1. The applicant was notified by email dated 31 July 2025 to appear before the Tribunal in the Adelaide registry on 19 August 2025 at 10:30am for a directions hearing.

2. The applicant failed to appear before the Tribunal at this time and the Tribunal dismissed the application orally at 10:40am on 19 August 2025 under section 99 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).

3. The applicant sent the following correspondence to the Tribunal by email at 10:49am on 19 August 2025.

   “Dear Honourable member of the court,

   I would like to ask for extensjon of my hearing as my previous representative failed to give me all the detaills of my current hearing which is scheduled today. I hereby attached documents for changes of contact details and an appointment of authorised representative.

   Thank you very much.

   Sincerely yours,

   [The applicant]

4. This correspondence was accompanied by a MR6 Change of Contact Details Form withdrawing the authorisation of their previous representative and an MR5 Appointment of Authorised Recipient Form appointing a Mr Michael Tizon as authorised recipient.

5. The applicant was notified by email at 1:10 on 19 August 2025 that the application had been dismissed and given a copy of a written statement setting out the decision, in accordance with s 368B(5) of the Migration Act 1958 (Cth) (the Act).

6. This correspondence invited the applicant to appear before the Tribunal in the Adelaide registry on 25 August 2025 at 10:00am to be heard on whether the application should be reinstated.

7. The applicant failed to appear before the Tribunal at this time.

8. The Tribunal has had regard to the guidance in Thanthrige v Minister for Immigration and Border Protection[1] which notes that there is no particular form that a request for reinstatement must take, and that the relevant consideration is whether there is anything on the face of the correspondence to suggest that a request for reinstatement was made.

   [1] Thanthrige v Minister for Immigration and Border Protection [2018] FCA 1230

9. The Tribunal regards the applicant’s correspondence of 19 August 2025 as a request for reinstatement and finds, accordingly, that applicant applied for reinstatement within 28 days of notice of the decision. The Tribunal has, accordingly, considered whether, in accordance with section 368C of the Act, it is appropriate to reinstate the application.

10. In assessing whether it is appropriate to reinstate the application in accordance with section 368C of the Act, the Tribunal has given due consideration to the gravity of a claim for protection and the consequences of dismissal.[2]

    [2] FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1025 [44]

11. The Tribunal has further given due regard to the purpose of the right to apply for reinstatement; being to provide an avenue by which an application may be dealt with on the merits rather than dismissed procedurally where it is appropriate to do so having regard to all of the circumstances advanced to support reinstatement.[3]

    [3] Singh v Minister for Immigration and Border Protection [2018] FCAFC 184, [27], [29].

12. The Tribunal has further had regard to the guidance of the Federal Court in Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479 at [47]–[48]) and FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1025 [37] and the Federal Circuit Court in EKM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1142 [52] – [73]

13. Accordingly, the Tribunal has considered whether the applicant has a reasonable excuse for their failure to appear before the Tribunal, the material that has been filed in support of the application, whether the applicant has taken genuine and reasonable efforts to further their application, and whether the application has sufficient merit to warrant the reinstatement.

14. For the following reason the Tribunal finds that it is not appropriate that the application be reinstated.

15. The applicant stated that their previous representative had failed to provide them with “all the [details] of [the] hearing”. The Tribunal notes, however, that the applicant states that they were aware of the scheduled date of hearing as set out in paragraph (3) above.

16. The Tribunal notes further that, at all relevant times, the Tribunal’s correspondence was addressed to the respective dully authorised representative. The Tribunal is accordingly satisfied that the applicant was properly notified in accordance with section 379A(5) of the Migration Act 1958 (Cth) and, as noted by the High court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [68]-[69], as the Migration Act provides that the relevant provisions are taken to be an exhaustive statement of the requirements of the natural justice hearing rule, the Tribunal acting fairly and justly is entitled to regard an applicant to whom it is satisfied that an invitation complying with the provision of the Migration Act has been sent as having had adequate notice of his or her opportunity to appear before the Tribunal when considering exercising it discretion to dismiss or determine an application in the event of non-appearance.

17. The Tribunal, accordingly, does not accept that the applicant was unaware of the date, time, and place of hearing.

18. There being no other reasons advanced by the applicant, or appearing on the material before the Tribunal, the Tribunal finds that there is no reasonable explanation for the applicant’s failure to attend the hearing.

19. The Tribunal has further had regard to the material that has been filed in support of the application and notes that the applicant applied for the protection visa on 28 March 2024 and was advised on 23 May 2024 that their claims lacked substantiation and corroborative evidence in support of those claims.

20. This correspondence also advised the applicant that, if they could not provide copies of documents or details of their claims as they were invited to provide, they should provide a detailed explanation of why they could not provide these documents and details, and of the efforts they made to obtain these documents.

21. This correspondence also informed the applicant that if they did not respond to the invitation within the specified time frame, the department could decide the application with the information it had at that time without asking them again.  

22. This correspondence also advised the applicant that, if they could not respond to the invitation within the specified time frame, they should contact the department through email or their ImmiAccount, attaching a letter explaining the reason, and requesting more time to provide the information.

23. The Tribunal notes that the applicant did not respond to this invitation.

24. The Tribunal notes that the applicant was on notice as of receipt of the delegate’s decision of 27 June 2024 that their application was refused on the basis that the lack of substantiation or corroborative evidence in support of their claims and their failure to respond to the department’s invitation to provide the same was such that their claims were not credible.

25. The Tribunal notes that the applicant has had the opportunity to provide further substantiation of their claim and or corroborative evidence in support of their claim and or address their failure to respond to the department’s invitation to provide the same since the time of their application to the Tribunal on 24 July 2024 and has not done so.

26. The Tribunal notes that the only correspondence received by the Tribunal to date consists solely of the applicant’s application for review and correspondence of 19 August 2025.

27. The Tribunal finds, accordingly, that the applicant has not taken genuine and reasonable efforts to further their application, and that the application does not have sufficient merit to warrant the reinstatement.

28. For the reasons expressed above, the Tribunal finds that it is not appropriate that the application be reinstated.

29. The Tribunal, accordingly, confirms the decision to dismiss the application in accordance with section 368C(3)(b) of the Migration Act 1958 (Cth).