MIGRATION - application for approval of nomination of position - failure to comply with direction to provide information and documents - application for review dismissed - application for reinstatement made more than 28 days after specified period ended, and information provided - representative was dealing with family medical issue and did not inform applicant of direction or dismissal - no independent evidence of medical issue provided - applicant taken to have received documents when given to representative - no discretion to reinstate when application made late - no fault by applicant, and later engagement with tribunal - dismissal confirmed - decision under review affirmed

Administrative Review Tribunal Act 1958 (Cth), ss 79(1), 100, 102

Migration Act 1958 (Cth), ss 368B(5), 368C, 379C, 379G

SZFDE v MIAC [2007] HCA 35; (2007) 232 CLR 189

1. This is an application for review of a decision made by a delegate of the Minister on 14 March 2024 to refuse to approve a nomination for a subclass 482 visa under the Migration Act 1958 (Cth) (the Act).
2. On 18 September 2025, the Tribunal made orders under s 79(1) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) directing the applicant to provide information and documents to the Tribunal by 16 October 2025 (4 weeks after the date of the order). The notes to the order stated:

The Tribunal may dismiss an application if an applicant fails to comply with the order. See section 100 of the Administrative Review Tribunal Act 2024.

3. The orders, and an accompanying cover letter, were sent by email to the applicant's representative and authorised recipient, who was a registered migration agent nominated by the applicant in their application for review as the person to receive correspondence on their behalf. The covering letter stated:

If you do not comply with the Tribunal's direction within the time specified in the direction, the Tribunal may make a decision on the review without holding a hearing or may dismiss your application for review without any further consideration of the application or the information before us.

4. The covering letter also explained that the applicant could request an extension of time to comply with the order.
5. On 26 November 2025, the Tribunal dismissed the application under s 100 of the ART Act on the basis that the applicant had failed within a reasonable time to comply with the orders of the Tribunal. This was almost 10 weeks after the date of the order and 6 weeks after the date specified for compliance had passed.
6. 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 after receiving the dismissal statement, and that a failure to apply for reinstatement within the 28-day period would result in confirmation of the dismissal decision.
7. The applicant did not apply for reinstatement of the application within the 28-day period, which ended on 24 December 2025.
8. On 22 January 2026 (around 29 days after the 28-day period within which to apply for reinstatement had ended), the applicant wrote to the Tribunal to request reinstatement of the application. In this request, they stated:
   1. their business was only informed on 21 January 2026 about the Tribunal's orders and the dismissal of the application
   2. their representative was dealing with a family medical situation and did not inform them of any communication received from ART before that time
   3. their representative claimed to have forwarded the communication to them from a non-agency email but they did not find any of those emails in their mailbox including the spam folder.
9. On 4 February 2026, the applicant provided further documentation, of the kind that they were directed to provide in the orders given on 18 September 2025.
10. On 5 February 2026, the Tribunal wrote to the applicant seeking submissions as to whether there was any legal basis for the Tribunal to reinstate the application for review.
11. On 9 February 2026, the applicant made submissions broadly to the effect that:
    1. their representative did not inform them that their application had been dismissed or that they could seek reinstatement within 28 days, and as a result they had no actual knowledge of the dismissal or the reinstatement deadline
    2. during that time the representative was experiencing serious and unforeseen personal circumstances involving the hospitalisation of her partner, which impacted her ability to manage client matters and communicate with the applicant
    3. the applicant first became aware of the dismissal on 21 January 2026 and acted promptly by contacting the Tribunal and making submissions on 22 January and 4 February 2026
    4. they never intended to abandon their application for review and the dismissal proceeded on the incorrect assumption that they had abandoned it, which did not reflect their actual intention or conduct, and occurred without procedural fairness due to excusable neglect caused by circumstances beyond their control
    5. the failure to apply for reinstatement within time was not deliberate and also occurred due to circumstances beyond their control
    6. a refusal would see the applicant disadvantaged and would be unfair and unjust, because the applicant did not have a fair opportunity to respond to the Tribunal's communications.
12. The applicant has not provided any independent evidence (such as medical evidence) to support their claims that their representative's partner was hospitalised, and from the limited detail provided, it is unclear why any such circumstances would have had such an extensive impact as to prevent the representative informing the applicant of the Tribunal's communications from the time the orders were made on 18 September 2025 until the time the period within which to request reinstatement of the application ended on 24 December 2025, which was a period of over 3 months.
13. Nevertheless, I am prepared to accept that the applicant's representative did not inform them of the Tribunal's directions or the dismissal decision or any associated communications until 21 January 2026. I also accept that the applicant did not intend to abandon their application, and that their failure to apply for reinstatement within time was not deliberate and arose out of circumstances beyond their control (their representative's failure to inform them about the communications from the Tribunal).
14. Unfortunately for the applicant, even accepting these claims to be true, there does not appear to be any legal basis for me to now reinstate the application.
15. On the face of the documents, it appears that the directions and the dismissal decision were made lawfully and reasonably by the Tribunal, and by virtue of sections 379C and 379G of the Act, the applicant is taken to have received those documents when they were given to their representative. By the applicant's own account, it appears that the representative's failure to inform them about the communications from the Tribunal arose out of misfortune which impacted her ability to manage matters on behalf of her clients, rather than from any fraudulent conduct of a kind that might vitiate the dismissal decision (see e.g. SZFDE v MIAC [2007] HCA 35; (2007) 232 CLR 189).
16. Section 102 of the ART Act empowers the Tribunal to allow a longer period than 28 days for a party to apply for reinstatement in special circumstances. However, because the decision in this case is a reviewable migration decision, s 368C of the Act excludes the operation of s 102 of the ART Act. Unlike s 102 of the ART Act, s 368C does not appear to give me any discretion to reinstate an application where reinstatement is sought after the 28-day period has ended. It states:

If the applicant fails to apply for reinstatement within the 28-day period... the ART must confirm the decision to dismiss the application...

17. Accordingly, I must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
18. I understand that this outcome may seem harsh, unfair and unjust, particularly in circumstances where the non-compliance with the directions was not the applicant's fault, and the applicant has now sought to engage with the Tribunal and has provided material of the kind that they were directed to provide.
19. However, unfortunately, this is the outcome required by the legislation.

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