EDR20 v Minister for Immigration and Citizenship [2026] FedCFamC2G 419

1. This is an Application filed on 11 February 2026 for reinstatement of an application for judicial review. The application for judicial review was dismissed on 15 December 2025, when the Applicant failed to appear at the scheduled interlocutory hearing.

1. The following was said by Stewart J in CDD18 v Minister for Immigration, Migrant Services and Multicultural Affairs [2022] FCA 1283 at [17]:

I respectfully adopt what was said by Davies J in DAE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 79 at [8] with regard to the principles applicable to the exercise of the power under r 16.05(2)(a) of the FCC Rules to vary or set aside a judgment or order that has been entered in the absence of a party:

Generally a court will have regard to three factors in exercising the power and consider whether, on balance, those factors tend for or against the reinstatement. Those factors, as explained by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7] are:

(a) whether there was a reasonable excuse for the applicant's absence from the hearing in which the proceeding was struck out;

(b) the existence and nature of any prejudice that might flow to the respondent from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; and

(c) whether the applicant has a reasonable chance of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi‑Cultural and Indigenous Affairs [2005] FCA 1066 at [18]:

The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.

(Ryan J's emphasis).

However, as the Full Court observed in [FBS18 v Minister for Home Affairs [2019] FCAFC 196] at [55] and [58], the discretion in r 16.05(2)(a) of the FCC Rules is a broad discretion and there are no statutorily prescribed matters that must be taken into consideration when deciding whether or not it is in the interests of justice to exercise that discretion. Factors commonly cited in case law, such as those listed by Ryan J in MZYEZ, are to be taken as a guide to what may be considered when exercising the discretion in r 16.05 of the FCC Rules, and the statutory discretion should not be fettered by judicially imposed rules so that it becomes equated to a statutory check-list.

1. To the above factors, the Court would add the length of the delay between the dismissal of the matter and the application for reinstatement. The longer the delay, the more persuasive the reason needs to be for the Court to exercise its discretion to reinstate a matter.
2. Pursuant to r 24.04(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (the Rules), the Court has the power to set aside an order made in the absence of a party. Under r 25.11 of the Rules an applicant must file their reinstatement application under r 24.04(a) within 21 days of the order being entered. The Applicant's delay in seeking reinstatement in this matter is 37 days. This weighs against reinstatement.
3. As to the reason why the Applicant did not appear at the interlocutory hearing on 15 December 2025, in an Affidavit affirmed on 11 February 2026, the Applicant states that she was not aware of the hearing, as the notice of listing email failed to deliver as a result of storage issues with her Gmail account. This is not an adequate explanation for missing the interlocutory hearing, especially in circumstances where both the Court and the First Respondent sent, via registered post, a physical notice of listing to the Applicant's postal address provided.
4. The Applicant stated that she had moved to Victoria and had not received the hard-copy postal notification. The Applicant admitted she had not updated her postal address with the Court. Hence, the hard-copy was sent to her old New South Wales address. I am not satisfied that the Applicant has provided a reasonable explanation in relation to her failure to access her email, or keep the Court informed of her current postal address. Accordingly, this factor weighs heavily against reinstatement.
5. As to any prejudice to the First Respondent, the First Respondent has properly conceded that no real prejudice flows that cannot be mitigated by a costs order. Further, the First Respondent submits that regard should also be had to the impact on the Court's resources and, in turn, on other users of those resources. In this case, reinstatement would result in unnecessary delay in the resolution of this matter, and in the further wastage of the Court's time and resources. The Court considers this factor to weigh against reinstatement.
6. This leaves the merits of the substantive application for consideration. If the substantive application has no merit, reinstatement would be pointless. In considering the merits of the substantive application, consideration should be at the impressionistic level. This factor is considered below.

1. The application for judicial review relates to a decision of the (then) Administrative Appeals Tribunal (the Tribunal) dated 25 May 2020, affirming a decision of a Delegate of the first respondent (the Delegate) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (the Visa).
2. The Applicant also requires an Extension of Time to seek judicial review pursuant to s 477(2) of the Migration Act 1958 (Cth) (the Act), as her Originating Application to the Court was filed approximately 78 days out of time.
3. The Applicant is a citizen of Malaysia.
4. On 16 September 2016, the Applicant applied for the Visa, claiming to be a Muslim, and feared harm from her family on the basis of their disapproval of her relationship with a Christian.
5. In the Visa application, the Applicant included an email address (the nominated email address) and consented to the Department communicating with her by email.
6. On 30 March 2017, the Delegate refused the Applicant the Visa on the basis that she was not a person to whom Australia owed protection obligations. On the same day, the Applicant was notified of the Delegate's decision via email to her nominated email address. The Applicant subsequently applied to the Tribunal for review of the Delegates' decision.
7. On 25 August 2017, the Tribunal affirmed the Delegate's decision (the first Tribunal decision).
8. On 25 March 2020, the Applicant, for a second time, applied to the Tribunal for review of the Delegate's decision (the second review application).
9. On 1 April 2020, the Tribunal invited the Applicant to comment on the validity of the second review application. The Tribunal explained that it appeared that the application was invalid, as it sought review of a decision that had already been reviewed by it, with a decision made on 25 August 2017. The invitation noted that any comments were to be provided to the Tribunal within 28 days. The Applicant did not respond.
10. On 25 May 2020, the Tribunal found that it did not have jurisdiction to review the Delegate's decision, as it had already been the subject of a valid review by the Tribunal, and was therefore no longer a reviewable decision (the second Tribunal Decision).
11. On 26 May 2020, the Applicant was notified of the second Tribunal Decision.
12. On 15 September 2020, the Applicant lodged an application for an Extension of Time under s 477(2) of the Act to challenge the second Tribunal decision. It is not necessary to deal with the Extension of Time issue unless I grant an Extension of Time for the reinstatement application.

1. The Tribunal's decision in this matter comprises of one page and seven paragraphs, which are reproduced below.
   1. This is an application for review of a decision of a delegate of the Minister for Immigration on 30 March 2017 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act).
   2. The review application was lodged with the Tribunal on 25 March 2020. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
   3. An application for review of the same delegate's decision was previously made to the Tribunal. The Tribunal made a decision on that application on 25 August 2017. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate's decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.
   4. The Tribunal wrote to the applicant on 1 April 2020 indicating to her that it appears that her application is not a valid application. The letter explained that an application for review of the same delegate's decision was previously made to the Tribunal. The case number for that first application is 1709184 and the Tribunal made a decision on that application on 25 August 2017. The letter also explained that where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision.
   5. The applicant was given until 15 April 2020 to make any comments on whether a valid application has been made. As at the date of this decision, no response had been received from the applicant.
   6. As the delegate's decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.
   7. The Tribunal does not have jurisdiction in this matter.

1. The Applicant advances two Grounds of judicial review contained in an Originating Application filed with the Court on 15 September 2020. They are as follows (without alteration):
   1. DECISION MADE HAS LAWFULLY ERROR
   2. THE NON CITIZEN LIFE IS IN DANGER AND WILL BE TORTURE

THE APPLICANT'S SUBMISSIONS ON THE PROPOSED GROUNDS OF JUDICIAL REVIEW

1. The Applicant appeared before the Court unrepresented. At the Hearing, the Applicant was assisted by a Malaysian interpreter.
2. Prior to the Hearing commencing, the Court ensured that the Applicant was in possession of a copy of the relevant Court Book and that the First Respondent's Written Submissions had been provided to her and that she understood them. The Applicant specifically stated she did not require the submissions to be translated to her. The Court also ensured the Applicant had access to a pen and paper so she could take notes during the course of the Hearing should she so wish to.
3. At the commencement of the Hearing, the Court explained that it was undertaking judicial review, not merits review, and outlined the difference between the two types of review. The Court also explained the procedure by which the Hearing would be undertaken.
4. The Applicant was asked to identify any legal error in the Tribunal's decision that it lacked jurisdiction because the matter had already been determined. The Applicant candidly acknowledged that there was no error and that she was simply seeking a second attempt at the Tribunal.
5. Following the First Respondent's Oral Submissions, the Applicant was asked if she wished to say anything in reply. The Applicant stated she was just trying to follow the Court procedure.

THE FIRST RESPONDENT'S SUBMISSIONS ON THE PROPOSED GROUNDS OF JUDICIAL REVIEW

1. Proposed Ground One has no merit. In circumstances where an earlier, differently constituted Tribunal reviewed the Delegate's decision, the Tribunal was correct to find that it had no jurisdiction. The Delegate's decision was no longer a reviewable decision under Part 5 or Part 7 of the Act: BWI18 v Minister for Home Affairs & Anor [2020] FCA 290 (BW118) at [13]. Having already reviewed the Delegate's decision, the Tribunal was functus officio, and it was not open to the Tribunal to review the Delegate's decision for a second time. The Tribunal's decision was not only correct, but it was the only decision open to it in the circumstances: BW118 AT [13].
2. Proposed Ground Two invites the Court to engage in impermissible merits review and rises no higher than emphatic disagreement with the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

CONSIDERATION OF THE MERITS OF THE SUBSTANTIVE APPLICATION.

1. Proposed Ground One has no merit. The Tribunal properly found that it had no jurisdiction, as the Delegate's decision, the subject of the proceedings before the Court, had already been the subject of a previous Tribunal decision. I agree with the First Respondent that, in these circumstances, the Tribunal was functus officio: BWI18 at [13].
2. Proposed Ground Two also has no merit. It is not a proper ground of review. At its highest, it simply invites the Court to undertake impermissible merits review.

1. I have noted above that the time delay in seeking reinstatement weighs against reinstatement. I am also satisfied that there is some prejudice to the First Respondent. Further, I am not satisfied with the Applicant's excuse for not attending the interlocutory hearing on 15 December 2025. Most importantly, the underlying application for judicial review is devoid of any merit.
2. In these circumstances, the Application for reinstatement is refused.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.