AGK25 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1402
•29 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AGK25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1402
File number(s): PEG 8 of 2025 Judgment of: JUDGE GERRARD Date of judgment: 29 August 2025 Catchwords: MIGRATION – protection visa – decision of the Administrative Review Tribunal – failure to appear before the Tribunal – where Tribunal dismissed the application pursuant to s 99 of the Administrative Review Tribunal Act 2024 (Cth) – whether the applicant was afforded sufficient time to prepare materials – whether the Tribunal failed to consider the applicant’s grounds – no jurisdictional error established – application dismissed. Legislation: Administrative Review Tribunal Act 2024 (Cth) ss 4, 99, 99(a)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Item 228 of Part 1 of Schedule 2, Item 24 of Part 5 of Schedule 16
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 368, 368B(2), 368B(5), 368C, 368C(1), 368C(2), 368C(3), 368C(4), 368C(5), 379A(5), 379C(5), 425, 426A, 441C(5), 476
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of last submission/s: 20 June 2025 Date of hearing: 4 July 2025 Place: Adelaide Applicant: In person with the assistance of a Mandarin interpreter Counsel for the First Respondent: Greg Johnson Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 8 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGK25
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
29 AUGUST 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
INTRODUCTION
The applicant seeks judicial review of two decisions of the Administrative Review Tribunal (the Tribunal). The first of those decisions dismissed an application for review of an earlier decision of a delegate of the first respondent (the Minister) to refuse to grant him a Protection (Subclass 866) visa (the visa). The second decision confirmed the Tribunal’s dismissal of that application. As will be explained, for the applicant to succeed in this Court, he must establish that the Tribunal decisions contain a jurisdictional error. This Court cannot undertake a review of the merits of the decisions under review.
For the reasons set out below, the Court has not found jurisdictional error in the Tribunal’s decisions. On that basis, the application cannot succeed.
The Court has also considered the Tribunal’s approach to its powers under new legislation noting that the Tribunal’s decisions were made following the passage of the Administrative Review Tribunal Act 2024 (Cth) and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
BACKGROUND
The applicant is a citizen of China (Court Book (CB) 15). He first arrived in Australia on 1 February 2018 on a visitor visa (CB 22).
On 29 March 2018, the applicant applied for the visa (CB 12-34). In his application, he claimed to have left China due to his lack of freedom of religious beliefs as a Christian. If returned, he feared he would be harmed by the Chinese government and arrested by the police on the basis of his Christianity (CB 28-29).
On 19 February 2019, a delegate of the Minister requested more information from the applicant in relation to whether he was of interest to the Chinese authorities, as well as his ability to openly practise Christianity in China (CB 46-52). The applicant did not respond to this request.
On 22 March 2019, a delegate of the Minister refused to grant the applicant the visa (CB 58-65). The delegate was ultimately not satisfied that the applicant is a person in respect of whom Australia has protection obligations as set out in ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (the Migration Act) (CB 60-61).
On 27 March 2019, the applicant applied to the Tribunal for review of the delegate’s decision (CB 66-67). That application contained the applicant’s email and postal addresses but did not contain a telephone number.
On 27 March 2019, the Tribunal wrote to the applicant at the email address he had provided requesting that the applicant provide the Tribunal with a contact mobile phone number by 8 April 2019. In that same correspondence, the Tribunal emphasised the importance of advising the Tribunal immediately of changes to any of his contact details. There is no evidence that the applicant ever responded to this correspondence.
A significant period elapsed and on 21 May 2024, more than five years after the application had been lodged, the applicant was invited by the Tribunal to complete a pre-hearing information form (CB 76).
On 16 September 2024, the Tribunal wrote to the applicant, noting that the applicant had not provided the Tribunal with a telephone number and requesting him to provide a telephone number by which he might be contacted as soon as possible (CB 79).
On 24 September 2024, the applicant was invited to attend a hearing scheduled for 1 November 2024 and was invited to complete a ‘Response to hearing invitation’ form (Hearing Response form) (CB 81-91). This correspondence also advised (CB 83):
What will happen if you don’t appear
If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. Not appearing at the scheduled hearing means:
•if you were invited to appear at an AAT office (including by video from an AAT office), you do not attend the AAT office at the scheduled time;
•if you were invited to appear by video conference using Microsoft Teams, you do not appear via Microsoft Teams at the scheduled time;
•if you were invited to appear by video conference at a specified place, you do not attend the place at the scheduled time; or
•if you were invited to appear by telephone, you do not answer our phone call to you at the scheduled time or you do not call us on the number we provided to you at the scheduled time.
A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
On 4 October 2024, the applicant was reminded by the Tribunal to complete the Hearing Response form (CB 92).
On 1 November 2024, the Tribunal convened the hearing but the applicant failed to appear. The hearing record notes that the applicant did not appear at the scheduled time and that no mobile phone number was on file which might be used to attempt to contact the applicant (CB 93). That same day, the Tribunal dismissed the application pursuant to s 99 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) (CB 100). The Tribunal advised the applicant that he may apply in writing for reinstatement of the application by 29 November 2024 (CB 98). The applicant did not apply for reinstatement within that 28-day period.
On 3 December 2024, the applicant was notified of the Tribunal’s decision to confirm its initial decision to dismiss his application, thereby affirming the delegate’s decision not to grant the applicant a protection visa (CB 103-105).
On 6 January 2025, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act.
THE TRIBUNAL’S DECISIONS
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. Given their relative brevity, it is convenient to set out the Tribunal’s decisions in full.
The Tribunal’s initial dismissal decision dated 1 November 2024 reads as follows:
1.On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
2.The review applicant was invited under s 425 of the Migration Act 1958 (Migration Act) to appear before the Tribunal on 1 November 2024 at 9:30 am. An invitation given before 14 October 2024 continues to have effect, and is taken to have been given by the Tribunal in accordance with the law applicable to the Tribunal for the purposes of the proceeding after that time: item 24(6)–(8) of the Transitional Act.
3.The invitation 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.
4.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5) of the Migration Act, and the invitation has not been returned to sender.
5.The Tribunal is satisfied that the review applicant received appropriate notice of the date, time and place of the hearing. The Tribunal invited the applicant by email dated the 24 September 2024 to a hearing to be held on the 1 November 2024. The applicant was asked to lodge a Hearing Response. On the 4 October 2024 the Tribunal wrote to the applicant to remind him to complete the hearing Response. The applicant did not respond. The tribunal was not provided with a telephone number to contact the applicant.
6.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Tribunal’s confirmation decision dated 2 December 2024 reads as follows:
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 March 2019 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).
2.On the 1 November 2024 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.
3.The review 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.
4.As the review applicant did not apply for reinstatement of the application within the 28 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5.The Tribunal confirms the decision to dismiss the application.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 6 January 2025 contains three grounds of review as follows:
1.Tribunal did not give me enough time to re prepare the materials I provided when I filed my previous application.
2.Tribunal refused my application without convincing reasons and grounds.
3.Tribunal failed to weigh the risks I would face if I returned to China.
The applicant appeared before the Court on 4 July 2025 without legal representation but with the assistance of a Mandarin interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 6 January 2025 (the affidavit being taken as read and in evidence at the hearing on 4 July 2025), a Court Book numbering 109 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 20 June 2025.
The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228 at [18]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal’s decisions and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decisions (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decisions revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 354-355);
(e)where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]);
(f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).
However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error. It was also explained to the applicant that the Court would be looking at whether the Tribunal followed the correct procedures in respect of its decisions to dismiss his application and then confirm that dismissal.
Against this background, the applicant told the Court that he failed to attend his hearing before the Tribunal as he did not receive any notification to attend. He did not make any further submissions or elaborate upon his grounds.
CONSIDERATION
As outlined above, the application for judicial review contains three grounds asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158). That is so, even though the applicant did not make any further submissions in respect of the stated grounds. However, before considering those grounds, the Court will first consider the Tribunal’s approach in this matter, observing that the Tribunal’s decision was made following the passage of the ART Act as well as the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act).
The Tribunal’s approach
For applications for review to the Tribunal that were not finalised before 14 October 2024, the effect of the legislative amendments was to give the Administrative Review Tribunal the authority to continue and finalise any aspect of the review not already completed by the Administrative Appeals Tribunal. Item 24 of Part 5 of Schedule 16 to the Transitional Act sets out:
24 AAT Proceedings
(1)This item applies if a proceeding in the AAT is not finalised (however described) before the transition time.
(2)The proceeding must be continued and finalised by the ART in a manner that the ART considers is efficient and fair.
(3)For the purposes of subitem (2), the ART must have regard to the impact of the following on the parties to the proceeding:
(a) the repeal of the old Act;
(b) the enactment of the new Act;
(c) the effect (including the operation) of this Act.
(4)The ART must, as far as possible, continue the proceeding under the new law.
(5)To avoid doubt, subitem (4) has effect subject to subitem (2).
Effect of things done before the transition time
(6)Anything done in, or in relation to, the proceeding before the transition time continues top have effect for the purpose of, or in relation to, the proceeding (as the case requires) after the transition time.
(7)Anything done in, or in relation to, the proceeding before the transition time that was valid under, or done in accordance with, the old law is taken to be valid under, or to have been done in accordance with, the new law for the purpose of the proceeding after the transition time.
(8)Anything done in, or in relation to, the proceeding before the transition time by the ART is taken, after that time, to have been done by the ART.
The Tribunal, in its dismissal decision, recognised the effect of the legislative amendments in [1] of its reasons as follows:
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. […]
The Court accepts that the Tribunal correctly stated the operation and effect of the transitional provisions.
Where the Tribunal had sent a letter to the applicant pursuant to s 425 of the Migration Act inviting the applicant to a hearing, the effect of the amendments was that the invitation continued to have effect (Item 24(7) of Part 5 of Schedule 16 to the Transitional Act). The Tribunal correctly observed that in its dismissal decision. The Tribunal had also sent the applicant letters in relation to his review application in May 2024, August 2024 and September 2024.
It must be said that there was a lamentable delay of five years between the filing of the application in 2019 and the correspondence sent by the Tribunal in 2024 effectively re-animating the application. That delay remains unexplained. When pressed on whether anything turned on this delay, the Minister submitted that in the present case, the Tribunal, in communicating with the applicant, was not only permitted but it had to send correspondence to the last email address that it had for him. It had received no contact from him that those contact details had changed, and the Migration Act therefore enables and requires the Tribunal to use those methods to correspond with the review applicant. Further, where correspondence is sent to the applicant at an address or email address provided, the applicant was taken to have received that correspondence pursuant to s 441C(5) of the Migration Act. The Tribunal, in its reasons, had regard to the hearing invitation sent to the applicant in September 2024, and to the other attempts made by the Tribunal to contact him.
It is hardly surprising that an applicant may have changed their email address over the span of a five-year delay. There is some force to an argument that the Tribunal’s unexplained delay played some part in the applicant’s unawareness in this respect. Nevertheless, the Minister is correct to point out that the applicant was very clearly on notice that he was required to update the Tribunal in respect of any change to his contact details and that the Tribunal had, on a number of occasions, requested that he provide them with a telephone number to no avail.
The Tribunal correctly recognised that, even though the ART Act had come into effect, that did not invalidate the steps the Tribunal had taken earlier in sending correspondence to the applicant. As set out above, Part 5 of Schedule 16 of the Transitional Act preserved the validity of those earlier steps. It was evidently the intention of the new legislation to maintain the continuation of a review commenced in the Administrative Appeals Tribunal in the new Administrative Review Tribunal. Item 24(7) in Part 5 of Schedule 16 specifies that:
Anything done in, or in relation to, the proceeding before the transition time that was valid under, or done in accordance with, the old law is taken to be valid under, or to have been done in accordance with, the new law for the purposes of the proceeding after the transition time.
It is clear that it was anticipated that applications which were on foot at the time the ART Act came into force would proceed in accordance with the provisions of the new Act. Item 24(4) in Part 5 of Schedule 16 of the Transitional Act expressly states that:
The ART must, as far as possible, continue the proceeding under the new law.
In this matter, the dismissal decision was made by the Tribunal on 1 November 2024. At that time, the ART Act had come into force. Accordingly, it was required to continue the proceeding under the provisions of the ART Act.
At the time of the dismissal decision, the provisions of the Migration Act that were in force prior to 14 October 2024 relating to failure to attend a hearing before the Tribunal had been repealed. Item 228 of the Transitional Act repealed the whole of Part 7 of the Migration Act (including s 426A which previously permitted the Tribunal to dismiss the application if the applicant did not appear).
The relevant dismissal power in the ART Act is now s 99 which provides that:
Tribunal may dismiss application if applicant does not appear
If:
(a)the applicant fails to appear at a Tribunal case event that relates to a proceeding in relation to an application; and
(b) the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event;
the Tribunal may dismiss the application.
A ‘Tribunal case event’ is defined in s 4 of the ART Act as follows:
Tribunal case event, in relation to a proceeding in the Tribunal, means:
(a) the hearing, or part of the hearing, of the proceeding; or
(b)a directions hearing, or part of a directions hearing, in relation to the proceeding; or
(c)a dispute resolution process, or part of a dispute resolution process, under Subdivision C of Division 6 of Part 4 in relation to the proceeding.
The Tribunal’s dismissal power in s 99 is discretionary but, as can be seen from the above, arises if the applicant “fails to appear at a Tribunal case event that relates to a proceeding in relation to an application” and the Tribunal is satisfied that the applicant “received appropriate notice of the date, time and place of the Tribunal case event”. In this matter, the hearing scheduled for 1 November 2024 was a Tribunal case event in accordance with s 4 of the ART Act. The applicant did not appear at that hearing, which satisfied s 99(a) of the ART Act to dismiss the application. The Tribunal found, in its reasons, that it was satisfied the applicant had received notice of the date, time and place of the Tribunal hearing and that the power in s 99 was engaged. The Court also accepts the Minister’s submission that the Tribunal’s reasons reveal its consideration of the circumstances of the case relevant to the exercise of its discretion, notably, that the applicant had been properly notified of the hearing, had not responded to the request to lodge a Hearing Response form, and did not provide a telephone number by which he could be contacted. In the Court’s view, the Tribunal’s reasons reveal an evident and intelligible justification for the exercise of the power under s 99 of the ART Act.
It was not incumbent on the Tribunal to consider the merits of the application itself in its dismissal decision. The Tribunal’s obligation to consider the merits of a case depends on the applicant appearing before the Tribunal. Section 99 of the ART Act gives the Tribunal discretion to dismiss the application but does not in its terms require the Tribunal to consider the merits of an applicant’s protection claims. That is a point of distinction from the repealed regime. In the repealed provisions of the Migration Act, an applicant’s failure to appear before the Tribunal gave to the Tribunal a number of options as to how to proceed on the review. One such way was to allow the Tribunal to look at the merits of the case with the limited information the Tribunal already held without taking any further action to enable the applicant to appear before it (s 426A(1A)(a)). Another option essentially allowed the Tribunal to proceed in the same way as dictated by s 99 and dismiss the application “without any further consideration of the application or information before the Tribunal” (s 426A(1A)(b)). Section 99, however, does not replicate the previous power in s 426A(1A)(a) to consider the merits of the application on the material before it.
Insofar as the applicant alleges that he was simply not receiving the letters that the Tribunal was sending to him, the Tribunal has limitations on what it can do in relation to contacting applicants. The applicant had not provided a mobile phone contact number as part of his application, and the applicant was contacted by the Tribunal and advised it is important he tell the Tribunal immediately if his contact details change. The Tribunal did all it could do in the circumstances with the contact information it held. To the extent that this can be construed as a submission that the Tribunal should not have been satisfied that the applicant had received appropriate notice of the hearing, such a submission cannot succeed in light of the Tribunal’s clear notice which was sent to the applicant’s nominated email address.
In relation to the Tribunal’s confirmation decision, its second decision, the Transitional Act introduced a new Division 5 of Part 5 of the Migration Act dealing with notification of ART decisions. Section 368C(1) of that new division provides that the section “instead of section 102 of the ART Act, applies if the ART dismisses an application for review of a reviewable migration decision or a reviewable protection decision”. If the dismissal is made under s 99 of the ART Act, s 368C(2) provides that the applicant may, within 28 days after receiving notice of the decision under s 368B(5), apply to the ART for reinstatement of the application. Section 368C(3)-(5) provides that:
(3)On application for reinstatement in accordance with subsection (2), the ART must:
(a)if it considers it appropriate to do so--reinstate the application by written statement under 368B; or confirm the decision to dismiss the application, by written statement under section 368.
Note 1: The ART must, under section 368B, notify the applicant of the decision to reinstate the application.
Note 2: The ART must, under section 368A, notify the applicant of the decision to confirm the decision to dismiss the application.
(4) If the ART reinstates the application:
(a) the application is taken never to have been dismissed; and
(b)the ART must conduct (or continue to conduct) the review accordingly.
(5)If the applicant fails to apply for reinstatement within the 28-day period mentioned in subsection (2), the ART must confirm the decision to dismiss the application, by written statement under section 368.
Section 368C of the Migration Act provides a procedure for reinstatement of dismissal decisions made under s 99 of the ART Act. Where an applicant has the opportunity to seek reinstatement but fails to do so within the prescribed time period, the Tribunal must affirm the decision to dismiss by written statement under s 368 of the Migration Act.
In the Court’s view, the Tribunal acted in accordance with the relevant statutory procedure and framework. The applicant was notified of the dismissal decision. The Tribunal’s notification was compliant with s 368B(2) of the Migration Act which requires the written statement for the dismissal decision to set out the decision of the Tribunal and record the day and time the statement was made. The notification was sent to the applicant by email, which is a permissible method under s 379A(5).
There was no error in the Tribunal’s approach.
Accordingly, the Court will now turn to the grounds raised in the application.
Sufficient time to prepare materials
Ground one of the applicant’s review application contends that the Tribunal did not give the applicant sufficient time “to prepare the materials I provided when I filed my previous application”.
The applicant did not provide further submissions at the hearing of this matter in relation to ground one. The Court will nevertheless consider this ground.
The Minister contended that it is difficult to conceive how the Tribunal did not give the applicant sufficient time to prepare materials. The applicant applied for the visa on 29 March 2018, his application was refused by the delegate a year later on 22 March 2019, and he applied promptly to the Tribunal for review on 27 March 2019. Nearly five years had passed before the Tribunal conducted a hearing for the applicant’s matter, on 1 November 2024, at which he failed to appear.
The Court accepts the Minister’s submissions in this regard. Noting this timeline, particularly the period of nearly five years between applying to the Tribunal for review and the time in which the Tribunal convened a hearing, it is evident that the applicant had ample time to prepare documents. Indeed, the Court has earlier expressed concern in respect of the delay taken by the Tribunal in this matter. In any event, the applicant did not engage with the Tribunal at all. The applicant did not ask for additional time to prepare materials, ask for an adjournment or even appear.
No jurisdictional error arises in respect of this ground.
Refusal without convincing grounds/failure to weigh risk
Grounds two and three contend that the Tribunal refused the applicant’s application without convincing reasons and grounds, and failed to weigh the risks the applicant would face if returned to China.
The applicant did not provide further submissions at the hearing of this matter in relation to grounds two and three. Once again, the Court will nevertheless consider these grounds.
In written submissions, the Minister submitted that the Tribunal gave clear reasons for each of its decisions. The Tribunal was not required to ‘weigh the risks’ of the applicant returning to China because he did not appear at the hearing. This was the statutory consequence of the applicant’s failure to attend the hearing, and a consequence that was explained to the applicant in the invitation letter he was sent prior to the scheduled hearing.
The Court agrees with the Minister’s submissions. The Tribunal set out clear, cogent reasons for its decision to affirm its refusal decision, and in the circumstances, was not required to engage with the merits of the applicant’s application. No error is evident in such an approach.
No jurisdictional error arises in respect of these grounds.
CONCLUSION
The application for review and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 29 August 2025
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