2436940 (Refugee) - [2025] ARTA 1397

2436940 (REFUGEE) [2025] ARTA 1397 (4 MARCH 2025)

DECISION AND

REASONS FOR DECISION

Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2436940

Tribunal:Jennifer Lock
Place:Adelaide
Date: 4 March
Decision:The Tribunal confirms the decision to dismiss the application.

Statement made on 04 March 2025 at 12:06pm

CATCHWORDS

REFUGEE – Protection visa – China – applicant failed to attend tribunal hearing – not satisfied the applicant has provided a satisfactory explanation for not attending the hearing – no medical certificate has been provided – not satisfied the applicant has taken reasonable steps to progress the application for review – decision under review affirmed

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth) s 99

Migration Act 1958, ss 5, 56, 362, 368, 379

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 REINSTATEMENT

Background

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 September 2024 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).
On 6 January 2025 the Tribunal dismissed the application under s 99 of the Administrative Review Tribunal Act 2024 (Cth) as the review applicant (the applicant) did not appear at the hearing listed at 2pm (CDST) on 6 January 2025.
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) of the Act. 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.

Reinstatement request

The applicant applied for reinstatement of the application within 28 days after receiving notice of the decision. The request for reinstatement stated that the applicant missed the hearing because of their health issue and other personal issues, and that they required more time to prepare all the required documents.
The Tribunal issued a direction on 11 February 2025 requiring the applicant to give any further information to the Tribunal by 28 February 2025, specifically:
a.any other information for the Tribunal’s consideration when deciding whether the reinstatement application should be granted, such as a medical certificate or report from a health professional regarding the applicant’s health and personal issues and any impact they had on their ability to attend the hearing on 6 January 2025;
b.details of their claims for protection, including any additional or new claims that were not included in the application for a protection visa; and
c.any further evidence and documents relied on in support of their claims.
At the time of this decision, the Tribunal had not received any further information or contact from the applicant.

APPLICATION FOR REVIEW

The applicant is a [age] year old woman who is a Chinese national. She was married to a [Country 1] citizen and lived in [Country 1] from 2004 – 2024. She has a daughter aged [age] years who resides in [Country 1]. The applicant arrived in Australia on [date] May 2024 on a tourist visa (subclass 600). The applicant lodged a protection visa application with the Department of Home Affairs (the Department) on 24 June 2024.

The applicant’s claims can be summarised as follows:
a.she was persecuted in China and can’t go back
b.she is now divorced and she cannot remain in [Country 1]
c.the Chinese government is going to demolish her house in China and force her to move out and she will be homeless
d.she has no place to live in [Country 1] due to her divorce from her [Country 1] husband
The Department wrote to the applicant by letter dated 5 August 2024 requesting further information from her regarding her claims under s 56 of the Act, and raising the concern that her claims lacked specific details and that she had not provided any evidence to support her claims. The applicant did not provide a response to the request for further information.
A delegate of the Department made a reviewable decision dated 14 September 2024 finding that the applicant’s claims were not credible. The delegate was not satisfied that the applicant is a refugee as defined in s5H(1) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the applicant will suffer significant harm.
The applicant applied to the Tribunal for a review of the delegate’s decision on 4 October 2024. The Tribunal acknowledged receipt of the application by letter dated 16 October 2024, advised her to provide any material or written arguments as soon as possible and provided contact details for free legal assistance available from refugee and immigration legal assistance providers. The letter was accompanied by information translated in Chinese language advising the applicant that the letter was important and required her urgent attention and referring her to a Translating and Interpreting Service if she required assistance contacting the Tribunal. The applicant was also requested to provide a copy of the delegate’s decision. The applicant responded to that request by email dated 3 November 2024, attaching a copy of the delegate’s decision.

The applicant’s conduct in progressing the review application

The Tribunal had previously notified the applicant to appear before the Tribunal on 9 December 2024. The hearing notice was sent to the applicant by email on 18 November 2024 in accordance with s379A(5) of the Act. The applicant was sent two reminders of the hearing date by SMS to her mobile telephone number. The applicant did not appear before the Tribunal at the scheduled date, time and place. The Tribunal contacted the applicant at the time of the scheduled hearing with an interpreter in the Mandarin language. The applicant stated that she could not read or understand English and did not understand the hearing invitation sent to her. The Tribunal offered the applicant the option of proceeding with a hearing via telephone or adjourning the hearing to another date.
The applicant requested the Tribunal adjourn the hearing. The Tribunal adjourned the hearing and advised the applicant through the interpreter that she would receive a new hearing invitation by email and would be expected to attend the hearing. The Tribunal further advised that if she failed to attend on the next occasion her application may be dismissed. The applicant stated that she understood and that she would attend the Tribunal for the hearing on the adjourned date.
The Tribunal sent to the applicant a hearing invitation for the adjourned hearing on 6 January 2025 by email dated 13 December 2024. The Tribunal also sent a link to information on language services available on the Tribunal’s website and information regarding free legal advice services.
The Tribunal is satisfied the applicant understood she would be required to attend the hearing at an adjourned time and date and place. The Tribunal is satisfied that a hearing invitation was sent to the applicant by email with additional information to assist her in seeking assistance.
The applicant has been sent hearing notices on two separate occasions, the first on 18 November 2024, and the second on 13 December 2024 providing her with appropriate notice of the date, time and place of the hearings scheduled on 9 December 2024 and 6 January 2025 respectively.
Both hearing notices advised the applicant to provide any documents she intends to rely on to support her case prior to the hearing.
As detailed above, the Tribunal issued a direction on 11 February 2025 requiring the applicant to give any further information regarding her claims and any further evidence and documents to the Tribunal by 28 February 2025.
The applicant has provided no further information to the Tribunal regarding her claims and has provided no further evidence to support her claims.

FINDINGS AND REASONS

The Tribunal has considered whether, in accordance with s368C of the Act, it is appropriate to reinstate the application. For the following reasons, the Tribunal is not satisfied it appropriate to reinstate the application. In coming to this conclusion, the Tribunal has had regard to the significant ramifications of dismissal for the applicant as she is seeking a protection visa.
The Tribunal has had regard to the relevant considerations identified by the Federal Court in Kumar v Minister for Immigration, Citizenship and Multicultural Affairs[1] when determining whether it is appropriate to reinstate the application:
a.whether the applicant has a reasonable or acceptable excuse for their absence at the hearing
b.whether the application for review has sufficient merit to warrant reinstatement
c.the applicant’s conduct generally in progressing their review application; and
d.prejudice to either party or the wider public arising from reinstatement[2]
[1] [2023] FCA 479 [47]-[48] in relation to repealed s 362B(1C) of the Act which the Tribunal finds equally applicable to s 368C(3) of the Act, given the respective provisions use the same wording.
The Tribunal is not satisfied the applicant has provided a satisfactory explanation for not attending the hearing listed on 6 January 2025. The Tribunal is satisfied that, following her non-attendance at the hearing listed on 9 December 2024, the applicant was aware that the Tribunal would relist the hearing at her request.
The Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the hearing on 6 January 2025 and did not attend the hearing.
The applicant did not contact the Tribunal prior to the scheduled hearing on 6 January 2025 to advise she would not be able to attend. The applicant’s request for reinstatement stated that the applicant missed the hearing because of her health issue and other personal issues, and that she required more time to prepare all the required documents.
The applicant was directed by Direction dated 11 February 2025 to provide any other information relevant to the Tribunal’s consideration of whether the reinstatement application should be granted, such as a medical certificate or report from a health professional regarding the applicant’s health and personal issues and any impact they had on their ability to attend the hearing on 6 January 2025. The applicant has not provided any further information or evidence.
The explanation offered by the applicant for her non-attendance, being her health issue and other personal issues, is vague and lacking in detail. There is no further explanation of what the health and personal issues are and what impact they had on the applicant’s ability to prepare for and attend the hearing listed on 6 January 2025. There has been no evidence provided to the Tribunal to support the applicant’s explanation. The Tribunal is not satisfied the applicant has a reasonable or acceptable excuse for not attending the hearing listed on 6 January 2025.
The Tribunal is mindful that having a satisfactory explanation for non-appearance at a hearing is not a precondition to whether it is “appropriate” to reinstate the application.[3]
[3] EKM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1142
The applicant’s claims for protection also lack detail and no evidence to support the claims has been provided to the Tribunal. The applicant advised the Tribunal she required more time to prepare all the required documents. The applicant had been on notice since 18 November 2024 that a hearing was being listed and that she needed to provide any further information or evidence to support her claims. The applicant has not provided any further information, documents or other documents to the Tribunal. The nature of the applicant’s claims indicate that there would be some documents available to corroborate her claims. Some of these documents were set out in Department’s s 56 letter to the applicant dated 5 August 2024, specifically:
a.copies of any land documents/title deeds for her property
b.evidence of the disputed property address being listed in the applicant’s hukou
c.copies of any communication about the appropriation of the applicant’s property sent by the authorities
d.evidence of proposed compensation for the applicant’s property
e.evidence of the applicant’s divorce
f.evidence that the applicant has been refused re-entry to [Country 1].
The Tribunal is mindful that the applicant stated she could not read or understand English and did not understand the initial hearing invitation sent to her. The Tribunal appreciates the difficulties this would cause for the applicant in putting her case. On two occasions, the Tribunal has provided the applicant with information in writing regarding free legal assistance and language assistance. On one occasion the Tribunal spoke with the applicant with the assistance of an interpreter in the Mandarin language and advised her of the purpose and importance of the hearing and that her application may be dismissed if she did not attend the next hearing.
The Tribunal has considered the applicant’s responsibility under s 5AAA of the Act to specify all particulars of her claim and to provide sufficient evidence to establish the claim. The Tribunal is not satisfied the applicant has taken reasonable steps to progress the application for review. The Tribunal is not satisfied the application for review has sufficient merit to warrant reinstatement.
In looking at the broader circumstances of this case the Tribunal is not satisfied it is appropriate to reinstate the application in accordance with s368C(3)(a) of the Act.
As the Department is not a participant in the hearing in this matter, there is no risk of prejudice to the Department should the application be reinstated. However, the Tribunal is mindful of its objective as set out in s 9 Administrative Review Tribunal Act 2024 (Cth)[4] (the ART Act) to provide an independent mechanism of review that is fair, just and timely, having regard to the issues to be determined.
[4] to provide an independent mechanism of review that:
a.is fair and just; and
b.ensures applications are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
c.is accessible and responsive to the diverse needs of parties to proceedings; and
d.improves the transparency and quality of government decision-making; and
e.promotes public trust and confidence in the Tribunal.
The Tribunal is satisfied that the applicant has been given reasonable opportunity to present her case, make submissions and adduce evidence.[5] The applicant has been offered the opportunity to attend hearings at the Tribunal to present her case with the assistance of an interpreter on two occasions, and has not attended on either occasion. The applicant has not provided a satisfactory reason for her non-attendance at the hearing on 6 January 2025. The applicant has further not complied with a direction to provide more information regarding her reasons for non-attendance, or to provide further detail and evidence to support her substantive application.
[5] s 55 Administrative Review Tribunal Act 2024 (Cth) (the ART Act)
There is a broader public interest, reflected in the Tribunal’s objectives, in applications before the Tribunal being resolved in a timely manner and not being drawn out in the absence of cogent reasons to do so. The Tribunal is not satisfied there are cogent reasons to justify the reinstatement of this application and is not satisfied it is appropriate to do so.
The Tribunal finds that, in accordance with section 368C of the Act, it is not appropriate to reinstate the application.
The Tribunal confirms, in accordance with section 368C(3)(b) of the Act, its earlier decision of 6 January 2025 to dismiss the application under section 99 of the ART Act. In these circumstances, the decision under review is taken to be affirmed.

DECISION

The Tribunal confirms the decision to dismiss the application.