CBX20 v Minister for Immigration and Citizenship

1. This was an interlocutory application filed on 12 December 2025 seeking to set aside orders which the Court made on 19 May 2025 dismissing an application for judicial review, with costs, on the basis that the applicant was absent from the final hearing that day (reinstatement application). The order for dismissal was made by the Court on 19 May 2025 under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (old GFL Rules).
2. The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or the new GFL Rules, commenced on 1 September 2025. At the time of filing the interlocutory application, the old Rules had ceased to operate. As the applicant is unrepresented, I have treated his interlocutory application as seeking re-instatement under r 24.04(a) of the new Rules.
3. The main difference between the making of reinstatement applications under the new Rules is that under r 25.11 of the new Rules an applicant must now file their reinstatement application under r 24.04(a) within 21 days of the order being entered. There was no time limit for making reinstatement applications under the Old Rules.
4. The applicant has not sought an extension of time to make his reinstatement application under r 25.11. I note at the hearing Ms Adler for the Minster opposed such an order, however, given there was no time limit under the Old Rules, I consider it appropriate in the circumstances, for the purpose of this application, to extend time for the filing of the application under r 1.15 up to and including 12 December 2025. This is despite there being a very lengthy delay, over six months. While delay is relevant to the question of whether an order should be made for reinstatement under r 22.04(a) (as discussed below) I consider that so far as the question of whether the Court should extend time to allow the reinstatement application to be made by the applicant, the Court should make such an order under r 1.15.

1. On 13 May 2020, the applicant commenced proceedings in this Court by filing an application for judicial review under of the Tribunal's decision dated 12 May 2020.
2. On 21 March 2022, the applicant filed a Notice of Address for Service, which identified a new residential address for service, and nominated a new email address for service (Notice of Address for Service dated 21 March 2022).
3. On 6 March 2025, at a telephone call over which the applicant and the Minister's legal representative both attended, a Registrar of this Court made an Order for the filing of any amended application, any further evidence and written submissions. The applicant did not file any documents in accordance with this order. The first respondent filed written submissions as required by the order.
4. On 9 April 2025, the registry sent the parties an email advising the final hearing would be in person at this Court at the Parramatta Registry, before me, on 19 May 2025 at 10:15 am. The Court sent this email to the applicant at his email address as notified by the Notice of Address for Service dated 21 March 2022 (applicant's nominated email address).
5. On 13 May 2025, the Court sent a reminder email to the parties, including to the applicant, informing them of the date, time and location of the hearing before me on 19 May 2025. The Court sent this email to the applicant's nominated email address.
6. On 19 May 2025, the applicant did not appear at the final hearing of his application before me. At that hearing I made orders that the matter be dismissed, with costs, under r 13.06(1)(c) of the Old Rules. I also gave written reasons for those orders.
7. On 12 December 2025, over six months later, the applicant filed his reinstatement application.
8. I listed the reinstatement application for directions regarding on 21 January 2026, and the Court sent an email regarding this listing to the applicant's nominated email address.
9. At the directions hearing on 21 January 2026, the applicant did not appear. Ms Adler for the Minister appeared. I made orders that the reinstatement application be listed for hearing on 2 February 2026. I also made orders for the applicant to file any further evidence and submissions. The Court sent a copy of those orders by email dated 21 January 2026 to the applicant's nominated email address.
10. On 2 February 2026, the applicant appeared. He was unrepresented. He had the assistance of a Mandarin interpreter. Ms Adler appeared for the first respondent.

1. The applicant seeks orders under r 24.04(a) of the new Rules setting aside the order for dismissal, with costs, the Court made under the Old Rules when he was absent for the final hearing on 19 May 2025.
2. The applicant also seeks an order that a new final hearing date be fixed for his original judicial review application.

1. In support of the reinstatement application the applicant relies upon an affidavit he swore on 3 December 2025. The affidavit contains the following evidence:

1. I, [applicant's name], affirm that I am the applicant.

2. I was mistreated in China and came to seek protection in Australia.

3. I dare not return to China due to persecution.

4. I lodged protection visa application in 2016, and it was dismissed in May 2020.

5. I lodged a judicial review to FCFCOA and it was dismissed on 19 May 2025.

6. A copy of order Is attached.

1. I didn't receive the notification for hearing timely, so I missed it. I wish to get my review application continued.

1. As outlined above, I made directions on 21 January 2026 for the applicant to file any further evidence on his application, together with any submissions. The applicant did not file any further evidence. Nor did he file any submissions in support of his reinstatement application.
2. I asked the applicant at the commencement of the hearing if he wanted to make any oral submissions about why he did not attend the hearing on 19 May 2025, and if he had any reason why there was a six month delay between that date and the filing of his reinstatement application on 12 December 2025.
3. The applicant told the Court that he did not receive the emails from the Court advising him about the hearing on 19 May 2025. When I asked him how he found out about the hearing of his reinstatement application before me, the applicant said that a friend of his manages or looks after his email inbox and he told the applicant that he had received an email on 21 January 2026 about the hearing on 2 February 2026. I pointed out to him that the email address the Court used to send notices of the 19 May 2025 hearing, the 21 January 2026 directions hearing and the 2 February 2026 hearing was the same email address he had told the Court to use in his Notice of Address for Service dated 21 March 2022. He agreed. He re-iterated that his friend, who managed his inbox, only informed him of the hearing on 2 February 2026, but not the earlier ones. I asked the applicant if he had any other submissions to make, and he said no.

1. The law on reinstatement was recently and helpfully summarised by Judge Laing in Abdul Samad v Minister for Immigration and Citizenship [2025] FcdCFamC2G 1673 at [11] as follows:
   1. The principles regarding the question of reinstatement have been considered in a number of cases, including in BQS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 13 (BQS17) at [31]-[32] (Judge Given). The power is discretionary. It requires the Court to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50]- [52] (Flick, Robertson and Lee JJ). The following matters are often considered:

(a) whether there is a reasonable explanation for non-appearance at the hearing and any delay in applying for reinstatement;

(b) any prejudice to the other party; and

(c) whether the grounds identified in the substantive application have reasonably arguable prospects of success: see BQS17 at [52] and CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15) at [4] (Mortimer J, as the Chief Justice then was).

1. Whether there is a reasonable explanation for not appearing on 19 May 2025: As to this issue, the applicant's evidence was, "I didn't receive the notification for hearing timely, so I missed it". The applicant clarified this at the hearing. He told the Court that he had asked a friend for assistance and to manage his inbox, and that friend did not forward the listing email from the Court to him.
2. The first respondent submitted that the applicant's explanation is not adequate and that it is the applicant's responsibility to ensure that he can receive communications from the Court at his nominated email address. It was submitted, and I accept, it is not an adequate reason to say that a friend who was managing his email had neglected to tell the applicant about the 18 April 2025 email (or the subsequent emails) advising of the 19 May 2025 hearing. I was up to the applicant himself to monitor and manage his nominated email address and not have a friend do it.
3. The first respondent also submitted that the initial Notice of Listing was sent approximately five and a half weeks prior to the listing, was sent a reminder by the Court on 13 May 2025 and was sent a further email by the first respondent on the same day. The first respondent submitted the explanation that the notice was not given "timely" is unsatisfactory. The first respondent submitted the notice period of five and a half weeks was a reasonable notice period for the setting of a hearing. I accept that submission. I also note that no contact was made with the Court by the applicant after 18 April 2025 either seeking adjourn or change the final hearing date because of lack of notice.
4. Delay in applying for reinstatement: At the hearing, the applicant blamed his delay on applying for reinstatement on not receiving any email about the 19 May 2025 orders. The first respondent described the explanation for the delay as inadequate. I agree. I do not accept the applicant's reason why he did not make his reinstatement application for over 6 months. I do not accept his evidence that he did not receive the email sent by Chambers dated 19 May 2025 attaching the 19 May 2025 orders, as he submitted. This is because the email was sent to his nominated email address, the same email address he recently received notice of the hearing on 2 February 2026, which he told the Court he did received (hence his appearance on 2 February 2026).
5. I consider this matter weighs against reinstatement of the judicial review application.

1. The next consideration is whether the first respondent suffers any prejudice. The first respondent submits that any prejudice can be addressed by an order for costs. This matter is neutral.

1. The final consideration is the merits of the judicial review application itself.
2. The grounds of the application are as follows (as written):
   1. The Tribunal officer refused my application because they could not provide my evidence to support my claims.
   2. The Tribunal officer did not accept that I was persecuted by Chinese government.
   3. The Tribunal officer did not consider the national conditions of China.
   4. I have left China for such a long time and cannot provide more evidence for my claims.

5. If I return back to China, I will be harmed again.

1. Grounds 1, 2 and 5 merely state matters going to the merits of the Tribunal decision. As the first respondent submitted, and I accept, the Court is not permitted to consider the merits of the Tribunal decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21.
2. Grounds 3 and 4 do not contain recognised grounds alleging jurisdictional error. As to these grounds, the Tribunal found at [29] the applicant was not telling the truth about what was happening in China. The Tribunal did not accept that he or his family were threatened in China, nor that he feared a senior villager as alleged, nor that he was not allowed to work in China, nor that he was forced to come to Australia. The Tribunal found, based on the credibility finding in [29], that the applicant did not have a well-founded fear of persecution in China. Given these findings, ground 3 is without substance.
3. As to ground 4, the High Court held in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ:
   1. ... It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well­ founded fear of persecution for a Convention reason. The [Tribunal] must then decide whether that claim is made out.
4. It was a matter for the applicant what evidence he gave to the Tribunal in support of his claims for protection. An inability to obtain evidence is not a recognised ground of jurisdictional error. Ground 4 has no substance.
5. I consider this matter weighs heavily against reinstatement of the judicial review application.

1. None of the pleaded grounds identify arguable grounds of jurisdictional error in the decision. I have also reviewed the Tribunal decision myself as the applicant is unrepresented. I am satisfied that no arguable jurisdictional error arises from my review of the Tribunal decision in this matter.
2. For the forgoing reasons, and weighing the above matters, I do not consider it is in the interests of justice to reinstate the applicant's judicial review application.
3. The reinstatement application is dismissed with costs.

1. Ms Adler sought an order that the applicant pay the first respondent's costs in the amount of $400. The amount sought is less than the scale amount set out in the Rules, noting the totality of the costs, inclusive of the costs order made at the conclusion of the final hearing, is now $5,400, which is below the scale amount. The applicant told the Court he did not want to make any submission on costs. The Court considers the amount sought for costs by the first respondent to be fair and reasonable given the nature of these types of matters. The Court will make a costs order for this amount.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.