2430016 (Refugee)

[2025] ARTA 2091

2430016 (REFUGEE) [2025] ARTA 2091 (9 JUNE 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2430016

Tribunal:General Member J Papalia

Place:Perth

Date:  9 June 2025

Decision:The Tribunal confirms the decision to dismiss the application.

Statement made on 09 June 2025 at 12:31pm

CATCHWORDS

REFUGEE – protection visa – China – dismissal decision – failure to attend Tribunal hearing – dismissal confirmed – decision under review affirmed

LEGISLATION

Administrative Review Tribunal Act 2024, ss 5AAA, 42, 99
Migration Act 1958, ss 360, 362, 368

CASES

Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [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

1. The applicant is a Chinese national who seeks review of the refusal of a protection visa. His matter was listed for substantive hearing before me on 6 May 2025. The applicant sought an adjournment of that hearing, and these reasons should be read with my reasons dated 6 May 2025 refusing the adjournment and dismissing the application for non-appearance. For the following reasons, the Tribunal has decided to confirm the initial dismissal. This decision will be taken to be a decision to affirm the visa refusal.

   Background

2. By application dated 2 June 2025, the applicant seeks re-instatement of his application under s 368C(2) of the Migration Act 1958 (Migration Act). It is in the following terms:

   I write to respectfully request that the Tribunal reinstate my application that was dismissed on 6 May 2025, pursuant to section 99 of the Administrative Review Tribunal Act 2024 (Cth).

   I understand the seriousness of the dismissal and sincerely apologise for my failure to appear at the scheduled hearing. I now respectfully submit the following grounds to support that reinstatement of my application is appropriate in the circumstances.

   I was unable to appear at the hearing on 6 May 2025 due to significant personal and logistical difficulties resulting from my recent relocation from Perth to Sydney. I undertake to comply promptly with all future directions, provide updated contact details, and participate fully in the rescheduled proceedings. I am committed to resolving this matter in a timely and respectful manner. Should the Tribunal decline to reinstate the matter, I respectfully request that it proceed to determine the application on the basis of the materials already filed, including my original application and any supporting documents on record.

   This is to ensure that my claim is considered on its substantive merits, rather than dismissed solely on procedural grounds.

   Request

   In light of the above, I respectfully request that the Tribunal:

   Reinstates my application; or, in the alternative,

   Proceeds to make a decision on the merits of my application based on the materials already submitted;

   And issues further directions as appropriate.

3. I directed the Registry to respond to this correspondence, as follows:

   The Tribunal refers to your request for re-instatement of your review application dated 2 June 2025.

   You cannot request a determination of the substantive merits of your visa application on the papers until a decision has been made to re-instate your application. You must first establish that re-instatement is appropriate.

   In assessing whether the Tribunal should exercise its discretion to re-instate your application, the Tribunal will consider, amongst [other] factors, whether you have a reasonable or acceptable excuse for your absence at the hearing of your substantive application and whether the application for review has sufficient merit to warrant re-instatement.

   The Tribunal notes that your request for re-instatement is not supported by any documentary evidence.

   The Tribunal further notes that it gave written reasons for refusing your application for an adjournment and requiring that you establish that you had moved to New South Wales.

   You have until 6 June 2025 to provide any documentary evidence in support of your application for re-instatement, including with respect to the substantive merits of your visa application.

   If you have any questions, please contact us immediately at [e-mail], or call 1800 228 333.

4. The applicant did not respond to that correspondence or provide supporting documentation.

   Consideration

5. The Tribunal is required to re-instate the application ‘if it considers it appropriate to do so’.[1] The Migration Act does not expressly identify the circumstances in which re-instatement may be “appropriate” or the considerations that must be taken into account when exercising the discretion.

   [1] Migration Act, s 368C(3)(a).

6. In Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479, Justice O’Bryan considered the former s 362B of the Migration Act and held:

   [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.

   [48] Further, having regard to the subject matter, scope and purpose of the power to reinstate in s 362B(1C), I consider that it is implicit that the question whether the applicant has a reasonable excuse for their absence at the hearing of their substantive application is a mandatory consideration for the Tribunal. That implication arises from the statutory context as referred to earlier. First, by s 360, the Tribunal is required to afford the applicant a hearing at which the applicant can give evidence and present arguments. Second, the power of dismissal under s 362B(1A)(b) is exercisable if the applicant does not appear at the hearing. It necessarily follows from that context that the reason for the failure to appear is a mandatory relevant consideration.

7. Respectfully, those observations would also apply to now s 368C of the Migration Act concerning both reviewable migration and protection decisions.

8. The Tribunal does not accept that the applicant had a reasonable excuse for his failure to appear on 6 May 2025. Relevantly, he has not established that he has, in fact, moved from Western Australia to New South Wales. The Tribunal notes that his last provided residential address remains an address in metropolitan Perth.

9. The Tribunal also considers the substantive application to have limited merit. The applicant is [age] years old and arrived in Australia on a tourist visa [in] April 2024. He lodged the protection visa application on 11 June 2024 as a ‘self-registered user’ and there is no suggestion that he received the assistance of a third party to complete the application. The applicant claims within the visa application that he is married and that his wife and immediate family remain in China. The protection claim is articulated on the basis of persecution by the Chinese Government in respect of ‘Christians’. In July 2024, the delegate sent the applicant a detailed request for further information and invited him to comment on pertinent country information. The applicant did not respond to the invitation, and the delegate ultimately found that she was not satisfied that the applicant was Christian or that he was otherwise at real risk of significant harm. The only addition to the original articulation of the claims since then has been the applicant’s ‘pre-hearing information form’ response in October 2024, where he maintains that he is Christian and that ‘Christians and other religious minorities’ are persecuted in China. This further articulation of the applicant’s claims was vague and uncorroborated. It did not deal with any of the matters quite properly identified by the delegate. The Tribunal notes that the applicant has the statutory responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim (s 5AAA). The applicant is some distance from establishing his claims and there does not seem to be any real prosect of the applicant adducing any further evidence to support them.

10. The Tribunal notes that it is presently seized with well over 100,000 applications for review, the overwhelming majority of which are Part 5 reviews. The Tribunal’s statutory objectives would not be promoted by enabling this applicant a further opportunity to prosecute his review in circumstances where there is such limited apparent substantive merit and where he has failed to prosecute the review in any meaningful way including by adducing any evidence in support of his claims.

11. Accordingly, for the above reasons, the Tribunal does not consider it appropriate for the application to be re-instated. The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.

    DECISION

12. The Tribunal confirms the decision to dismiss the application.