AXD22 v Minister for Immigration and Citizenship [2026] FedCFamC2G 453

1. The applicant seeks review of an exercise of power by a Registrar through orders made on 5 February 2026. By those orders, the Registrar dismissed an application for reinstatement (Reinstatement Application) made pursuant to r 24.04(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (GFL Rules), with costs.
2. The underlying application for judicial review (Substantive Application) had previously been dismissed by a Registrar, on 18 December 2025, for non-appearance. The Substantive Application sought judicial review of a decision made by the Administrative Appeals Tribunal (as it was) (Tribunal) on 5 January 2022. By that decision, the Tribunal confirmed a decision to dismiss an application that had been made to it for review of a decision of a delegate (Delegate) of the first respondent (Minister). The Delegate had refused to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).

1. The applicant applied for the protection visa on 6 November 2017. On 20 April 2018, the Delegate refused to grant the visa.
2. The applicant first sought review of the Delegate's decision by the Tribunal through an application made on 25 August 2018. The Tribunal initially considered that it lacked jurisdiction in the matter, on account of the application being filed out of time. A second application for review was submitted to the Tribunal on 5 September 2019. The Tribunal determined that it possessed jurisdiction, in circumstances where the Delegate's decision had been invalidly notified.
3. The Tribunal wrote to the applicant on 25 October 2021, advising that it proposed to hold a hearing via MS Teams due to the COVID-19 Pandemic. It asked the applicant to confirm if there were any barriers to the hearing being conducted in that way. It further advised that in the absence of a response, it would assume there were no issues. The applicant did not respond.
4. By email sent on 24 November 2021, the Tribunal invited the applicant to attend a hearing via MS Teams on 9 December 2021.
5. The Tribunal sent the applicant SMS reminders about the hearing on 2 December 2021 and 8 December 2021.
6. There was no appearance for the applicant at the hearing on 9 December 2021. On 13 December 2021, the Tribunal dismissed the application before it under s 426A(1A)(b) of the Migration Act 1958 (Cth) (Act). The applicant was notified of this decision (Dismissal Decision) through an email sent on 14 December 2021, which also provided information regarding her ability to apply for reinstatement by a specified time.
7. The applicant did not apply for reinstatement within the time period specified. On 5 January 2022, the Tribunal confirmed its decision to dismiss the application before it (Confirmation Decision). An email notifying this was sent that same day.

1. The Tribunal gave the following reasons for the Dismissal Decision:
   1. On 25 October 2021 the Tribunal wrote to the review applicant informing them that a hearing in their matter was likely to proceed via video using Microsoft Teams. The letter asked the review applicant to respond within 7 days if they had any concerns about the hearing proceeding in this manner. The Tribunal did not receive a response.
   2. The review applicant was invited under s 425 of the Migration Act 1958 (Cth) to appear before the Tribunal by video using Microsoft Teams on 9 December 2021 at 3:00pm. To attend the hearing by video, the review applicant was invited to click on a link in the hearing invitation at the specified time. Detailed instructions on how to attend the hearing were included in the invitation. The hearing invitation also gave the review applicant an option to join the hearing by audio only by calling, at the specified time, the telephone number and unique conference ID specified in the hearing invitation. The hearing was scheduled during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing by video. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
   3. The invitation stated that if the review 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. The Tribunal also sent the review applicant SMS reminders about the hearing five business days and one business day before the scheduled hearing to the last mobile phone number provided by the review applicant to the Tribunal in connection with the review. The invitation also stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the review without further notice. The review applicant did not respond to the hearing invitation and has not engaged with the Tribunal about the review process since 10 February 2020 when they sent the Tribunal a request of acknowledgement of their initial application for review.
   4. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. There is no evidence before the Tribunal that the review applicant joined the hearing by clicking on the link in the hearing invitation at the scheduled time, or that they called the telephone number in the hearing invitation and used the unique conference ID at the scheduled time, as instructed to do in the hearing invitation. There is also no record of the review applicant contacting the Tribunal by any other means at the scheduled time to explain why they had not used the link, or telephone number and unique conference ID, to attend the hearing. 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) and that the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.
   5. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
2. The Tribunal gave the following reasons for the Confirmation Decision:
   1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 April 2018 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).
   2. On 13 December 2021 the Tribunal dismissed the application under s 426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
   3. The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s 426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
   4. As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
   5. The Tribunal confirms the decision to dismiss the application.

1. The applicant applied for judicial review through the Substantive Application filed on 2 February 2022. The grounds relied upon by the applicant in the Substantive Application were stated as follows:
   1. The Department of Home Affiairs was unfairly treated my claims and evidence with wendesbury unreasonableness
   2. The Department of Home Affairs was improperly applied the legal provisions of : s.426A(1A)(b) ,426B(5) of Migration Act 1958 properly to assess my case

1. On 18 December 2025, the applicant failed to attend a scheduled hearing before a Registrar. The Substantive Application was dismissed, with costs, for non-appearance pursuant to r 22.04(1)(a)(i) of the GFL Rules.
2. The Reinstatement Application was filed by the applicant on 23 December 2025, stating the following:
   1. Minister For Immigration, Citizenship, and Multicultural Affairs and Administrative Appeals Tribunal, the Federal Circuit and Family Court of Australia did not apply the legal provisions of s.426A(1A)(b),s426B(5) of the Migration Act 1958 properly to assess my case, therefore seeking Minister For Immigration, Citizenship and Multicultural Affairs and Administrative Appeals Tribunal, to relief the no jurisdiction decision about my case and has jurisdiction on my case
   2. seeking Minister For Immigration, Citizenship, and Multicultural Affairs and Administrative Appeals Tribunal, the Federal Circuit and Family Court of Australia review and reconsider their decision, taking into account the correct application of the aforementioned legal provisions. It is essential for me to receive a fair assessment and a just outcome.
   3. Seeking an order that the proceedings in my case be reinstated
   4. As your email me to informed me to attend the meeting, but I tried may time and was still unable to access to video conference, I cannot understand what really happen to my phone and the Microsoft Teams. So I lost my chance to attend the meeting. I am still wondering why I cannot access to the hearing by video conference, you know I am over 51 years old, and I come from a remote village of [redacted], my education background is not that good, so those hi-tech things maybe made me felt confusing, so I miss to join the meeting.

1. A hearing was held before a Registrar on 5 February 2026, following which the Reinstatement Application was dismissed with costs.
2. On 23 February 2026, the applicant applied for review of this exercise of power (Review Application).

1. Review of a Registrar's decision may be sought under s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The review is to proceed on a de novo basis: r 3.08 of the GFL Rules. This means, in the present case, that the Court is required to determine whether the Substantive Application ought to be reinstated.
2. The principles regarding reinstatement are fairly well settled. The Court generally considers at least three matters - see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] per Ryan J and CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15) per Mortimer J, as her Honour was then known, at [4]:

(a) whether there was a reasonable excuse for non-attendance at the hearing in which the proceedings were dismissed;

(b) any prejudice; and

(c) whether the applicant has reasonably arguable prospects of success on the substantive application.

1. Delay in applying for reinstatement may also be considered: see AYF15 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 10 at [8] per Judge Given.

1. I accept, as the Minister submitted, that the applicant did not significantly delay in applying for reinstatement. Her application was made less than a week after the dismissal for non-appearance.
2. In the grounds of the Reinstatement Application, the applicant sought to explain her non-appearance at the hearing in question. The applicant submitted that she made a number of unsuccessful attempts to join the hearing remotely but was unable to access the meeting or understand what happened "to [her] phone and the Microsoft Teams". She suggested that issues arose because she is over 51-years old, comes from a remote village and her education background was "not that good" so "hi-tech things" were confusing.
3. The Minister submitted that the explanation provided was inadequate, for reasons including that it was not supported by sworn evidence. The applicant was advised of her ability to seek leave to provide evidence under oath or affirmation at the hearing orally. The applicant declined to seek such leave.
4. Even if the explanation had been provided in a form that could be received as evidence, I accept the Minister's submission that the limited detail provided does not adequately explain the non-appearance. There is no evidence, for example, that the applicant sought to draw any difficulties she was experiencing to the attention of the Court at the time of the hearing.
5. In any event, for the reasons given below, the Review Application would have been dismissed even if I had been satisfied by the explanation for non-attendance. This is because of what I have found in relation to the merits of the proposed Substantive Application.

1. The Minister does not identify any prejudice that is specific to this case, beyond being put to the burden and cost of additional litigation in respect of a matter he contends is unmeritorious. I will consider the merits of the application further below.
2. The Minister observes, and I accept, that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [15]- [17] per McHugh J.
3. Nonetheless, in the absence of any specific prejudice I give limited weight to this consideration.

1. The grounds relied upon by the applicant in the Substantive Application took issue with the approach taken by the "Department of Home Affairs". To the extent that the applicant sought review of the Delegate's decision, this Court has no jurisdiction to undertake such a review: s 476 of the Act.
2. Ground 1 contended that the applicant's claims and evidence were unfairly treated with unreasonableness. However, the Tribunal in this case dismissed the application for non-appearance. The Tribunal subsequently confirmed that dismissal when no reinstatement application was made. If the Tribunal's approach in this regard was not attended by relevant error, then the Tribunal was not generally bound to consider or determine the merits of the visa application: BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 at [21] per Beach J.
3. The question, then, is whether the Tribunal relevantly erred in making its decisions under s 426A(1A)(b) and/or s 426A(1E) of the Act. This issue was raised in ground 2 of the Substantive Application, in which the applicant also took issue with application of s 426B(5) of the Act.
4. Section 426A(1A) provided that, in the event of non-appearance by an applicant at a hearing to which they were invited under s 425 of the Act:

(1A) The Tribunal may:

(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal...

1. The applicant was invited to a hearing before the Tribunal pursuant to s 425 of the Act. The invitation complied with s 425A of the Act. It gave notice of the day, time and place of the hearing, with the notice including the 14-day period prescribed in r 4.35D of the Migration Regulations 1994 (Cth). It contained a statement of the effect of s 426A of the Act. As the invitation was transmitted to the last email address provided to the Tribunal by the applicant in connection with the review, pursuant to s 441A(5) of the Act, the applicant was taken to have received it according to s 441C(5) of the Act.
2. I accept the Minister's submission that it was not legally unreasonable for the Tribunal to have elected to dismiss the application when the applicant did not attend the hearing, for the reasons that the Tribunal gave. Those reasons are set out above and included reference to the terms of the hearing invitation, the lack of any indication that the invitation had not been received, the SMS reminders the Tribunal had sent prior to the hearing, the applicant's limited engagement with the Tribunal and the lack of any record of the applicant contacting the Tribunal by alternative means to explain her non-attendance at the hearing. These reasons provided an intelligible justification for the Tribunal's decision: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] per Hayne J, Kiefel J (as her Honour was) and Bell J.
3. For the above reasons, I conclude that there is no arguable basis for finding that any relevant error attended the Tribunal's Dismissal Decision.
4. The dismissal notification complied with the requirements of ss 426B(5) and (6) of the Act. It notified the applicant of the decision by giving the applicant a copy of a written statement setting out the decision with reasons and recording the day and time that the statement was made. This was notified by a method permitted by s 441A - by email sent in accordance with s 441A(5) - within 14 days of the decision. The notification attached the Dismissal Decision, invited the applicant to apply for reinstatement within 14 days and described the effect of ss 426A(1B) to (1F) of the Act. The contrary has not been demonstrated.
5. In the above circumstances, s 426A(1E) of the Act provided:

(1E) If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430...

1. The applicant did not apply for reinstatement within the requisite period. There is therefore no arguable basis for finding that the Tribunal relevantly erred in its Confirmation Decision.

1. It follows that the applicant has no arguable case for setting aside the Tribunal's decision. As Mortimer J (as the Chief Justice then was) observed in CAL15 at [4], it "is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case". Allowing reinstatement would only increase the costs and time associated with a process that is unable to result in a favourable outcome for the applicant. I am not persuaded that this should occur.
2. On the basis of the above, I accept the Minister's submission that the Review Application ought to be dismissed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.