ETF20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1397

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).

1. On 11 November 2020, the applicant applied to this Court for judicial review of a decision made by the second respondent (the Tribunal) on 15 October 2020. By that decision, the Tribunal dismissed the applicant's application for review of a decision of the first respondent (the Minister) not to grant a protection visa to the applicant in circumstances where the applicant had failed to appear at a hearing to which she had been invited by the Tribunal. The Tribunal subsequently confirmed the dismissal decision on 2 November 2020 after the applicant failed to seek reinstatement within the permitted period.
2. The applicant did not appear at a callover hearing I convened on 12 June 2025, and I acceded to the Minister's oral application for the application for judicial review to be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (the Rules), with costs.
3. On 14 July 2025, the applicant filed an application in a proceeding by which she sought to have her application for judicial review reinstated (the reinstatement application).
4. The Minister opposes the relief sought in the reinstatement application.

1. These were the documents I considered in determining the reinstatement application:

(1) The applicant's application for judicial review filed on 11 November 2020;

(2) The applicant's affidavit filed on 11 November 2020 (A1);

(3) The court book filed by the Minister on 29 January 2021 (CB);

(4) The dismissal orders I made on 12 June 2025;

(5) The reinstatement application filed on 14 July 2025;

(6) The applicant's affidavit filed on 14 July 2025 (A2);

(7) The reinstatement hearing programming orders I made on 17 July 2025; and

(8) The Minister's written submissions filed on 15 August 2025.

Rule 17.05(2)(a)

1. Rule 17.05(2)(a) empowers the Court to reinstate the application for judicial review. The use of that power is discretionary and unfettered by any express limitation, but the authorities on point are to the effect that the power should be exercised in favour of reinstatement if it is in the interests of justice to reinstate the relevant application. The factors the Court has often considered in determining reinstatement applications include the following (see, for a relatively recent example, AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 at [4]- [8] per Judge Given):

(1) Whether there is a reasonable explanation for the relevant party's absence at the hearing at which the orders in issue were made;

(2) The extent of the delay between the making of the relevant orders and the lodging of the reinstatement application;

(3) Whether any prejudice might flow to other parties if reinstatement were ordered, and how any such prejudice may be alleviated; and

(4) The merits of the substantive application that is the subject of the reinstatement application.

Explanation for failing to appear at the callover hearing

1. In A2 the applicant asserts that she did not receive notice of the 12 June 2025 hearing from the Court, and that she first came to know that her application for judicial review had been dismissed on 10 July 2025 when the Minister's department contacted her to advise that her bridging visa would be expiring (presumably as a result of the dismissal of the application for judicial review). The Court's listing notice for the 12 June 2025 hearing was transmitted by email on 26 May 2025 at 10:39am to the email address identified in the footer of the applicant's application for judicial review and A1. I infer, given the content of that email address and the fact that the application for judicial review and A1 state that they were prepared by "AMC Charity", that the applicant did not control that email address, and that the address instead belonged to the charity that assisted the applicant with the preparation of the initiating documents for this Court case. At the reinstatement hearing the applicant confirmed that this was the case, and that the charity had not forwarded the Court's listing notice email to her and her husband. She went on to explain that the charity worker that controlled that email account did not have access to his emails because he was stuck in a different country. In the circumstances, I am inclined to find that the applicant did not intentionally miss the callover, and that she would have attended that hearing if it had been brought to her attention by the charity. This is a matter that weighs in favour of reinstatement.

Delay between dismissal of judicial review application and filing of reinstatement application

1. The application for judicial review was dismissed for non-appearance on 12 June 2025 and the Court's orders were emailed to the charity's email address later that day, but the applicant's unchallenged evidence in A2 is that she did not become aware of those orders until 10 July 2025. She then filed the reinstatement application on 14 July 2025. I find that the applicant acted quickly when seeking reinstatement and this is a matter that weighs in favour of reinstatement, but I accept the Minister's submission that it would not be appropriate for this finding to be determinative as to the outcome of the reinstatement application.

1. I am not satisfied that the Minister would suffer any immediate prejudice in the event the reinstatement application was to be granted. However, the fact that the Minister would not be irremediably prejudiced by reinstatement is not of itself a sufficient basis to warrant reinstatement (AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [34] per McKerracher J).

1. To obtain the relief she seeks in her application for judicial review, the applicant will need to establish that the Tribunal's decisions (or either of them) are vitiated by jurisdictional error (Minister for Immigration and Citizenship v Li [2013] HCA 18 at [46]; [2012] HCA 61; (2013) 249 CLR 332 at 357 per Hayne, Kiefel and Bell JJ). In considering the merits of the application for judicial review for the purposes of determining the reinstatement application, it would not be appropriate for me to expect the applicant's grounds "to be fully developed, especially by an unrepresented asylum seeker whose first language is not English" (CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [6] per Mortimer J (as her Honour then was)). However, I nonetheless find myself unsatisfied that the application for judicial review has sufficient prospects of success to warrant that application being reinstated.

1. The applicant is an Indian citizen (CB 14). She arrived in Australia in 2007 as the holder of a student visa (CB 82). She then applied for two subclasses of work visas in 2009 (CB 82). The applicant unsuccessfully pursued those work visa applications through to the Full Court of the Federal Court of Australia and, in 2016, roughly a year after the adverse decision of the Federal Court, the applicant applied for the protection visa (CB 82).
2. The applicant's husband was also a party to the protection visa application (CB 2). He filed a separate application for judicial review in this Court (SYG2552/2020 - ETH20 v Minister for Immigration and Citizenship) and I have dealt with his attempt to reinstate that application (which was also dismissed for non-appearance at a callover on 12 June 2025) in separate reasons delivered today (ETH20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1398). My two sets of reasons are similar because the issues arising in the two cases are similar, and the two reinstatement applications were heard contemporaneously.
3. In the visa application form the applicant claimed to fear harm in India because she was a particular kind of Christian, namely, a Jehovah's Witness (CB 34-36). The delegate refused to grant a visa to the applicant because had been unable to satisfy themselves that the applicant had genuinely converted to the Jehovah's Witness faith (CB 87). In reaching that conclusion the delegate brought to account the applicant's delay in applying for a protection visa, her pursuit of other kinds of visas in Australia, and her failure to take up an opportunity to attend an interview to discuss her protection claims (CB 83, 86-87).
4. On 13 September 2016, the applicant applied to the Tribunal for review of the delegate's decision (CB 91). She appointed a Mr Khan, who is affiliated in some way with the aforementioned charity, as her authorised recipient in the Tribunal proceedings (CB 92-93, 97). For reasons explained in ETH20, the applicant's husband was not named as a party to that Tribunal application.
5. On 29 September 2020, the Tribunal sent an email to Mr Khan by which it invited the applicant to attend a hearing at the Sydney Registry of the Tribunal on 15 October 2020 (CB 168). The invitation relevantly said the following (CB 170):

If you are not able to participate in this hearing, you need to advise us as soon as possible. Please note that we will only make changes if satisfied that you have a good reason for being granted an adjournment. The Presiding Member will consider any submissions you make about why it is not suitable or possible for your hearing to proceed and you will be advised of the outcome of that consideration before the hearing. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

If you do not participate in 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. 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.

1. The hearing invitation was accompanied by a brochure that relevantly said this (CB 174):

What if I cannot attend the scheduled hearing?

If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If you do not attend 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.

If you seek to adjourn your hearing for a medical reason, you must provide a doctor's certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

1. On 13 October 2020, Mr Khan sent a fax to the Tribunal which attached a letter that relevantly said that the applicant and her minor-aged daughter were sick and that the applicant was therefore unable to attend the hearing on 15 October 2020 (CB 178). The letter also requested that a future hearing be scheduled to commence in the afternoon to facilitate the making if babysitting arrangements for the applicant's child (CB 178). The fax also attached a document titled "Medical Certificate" completed by a Dr Mohamed which was dated 13 October 2020 and which said this (CB 179):

THIS IS TO CERTIFY THAT

[The applicant] has a medical condition and will be unfit for usual duties on 15/10/2020 inclusive.

1. The certificate did not identify the applicant's medical condition or her "usual duties" nor did it explain why the former would render her unfit for the latter. The comments of Barrett J (as his Honor then was) in Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [22] are therefore apposite:

All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything.

1. On 14 October 2020, the Tribunal advised the applicant that her request for the hearing to be adjourned had been refused (CB 180). The Tribunal's reasons in that regard were as follows (CB 182):

Your request for an adjournment does not comply with paragraph 6.18 of the COVID- 19 Special Measures Practice Direction - Migration and Refugee Division (the Direction) because the medical certificate you have submitted does not set out when you had your appointment with the medical practitioner, why you are unfit to give evidence at the scheduled hearing, or when the medical practitioner thinks you will be fit to give evidence at an oral hearing. We note that the Direction is available on the Tribunal website and that a link to the Direction was included in your hearing invitation and a link can also be found below.

Your request for an adjournment states that your two-year old daughter is sick however no medical evidence of that has been provided.

Your request states that a hearing after noon would be suitable for you. You were asked on 14 September 2020 to inform the Tribunal by 21 September 2020 of your availability to attend a hearing on 14 or 15 October 2020. The Tribunal expects that if you were unable to attend a hearing prior to noon you would have informed the Tribunal of that in response to that letter. However, you did not respond to that letter at all.

For the above reasons, the Member conducting your review had decided not to adjourn your hearing at this stage. If you would like the Member to reconsider your request for an adjournment on medical grounds, please submit a medical evidence which complies with paragraph 6.18 of the Direction as soon as possible and before the scheduled hearing. Please note, as stated in your hearing invitation and in paragraph 6.19 of the Direction, if you are not notified that your hearing has been postponed then you must appear at the hearing at the scheduled time.

The hearing will therefore proceed [on 15 October as planned]

1. Despite the Tribunal's clear invitation for her to do so, the applicant did not thereafter renew her request for an adjournment of the Tribunal hearing set for 15 October 2020. The applicant gave an explanation for this during the reinstatement hearing, and I will return to that topic later in these reasons.
2. The applicant did not appear at the hearing on 15 October 2020 (CB 185). The applicant's failure to attend the hearing enlivened the powers conferred by s 426A(1)-(1A) of the Migration Act 1958 (Cth) (the Act), which provided as follows:

Scope

(1) This section applies if the applicant:

(a) is invited under section 425 to appear before the Tribunal; but

(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

(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. Late in the afternoon of the day of the hearing, the Tribunal dismissed the applicant's Tribunal application pursuant to s 426A(1A)(b) of the Act (the dismissal decision) (CB 192). The Tribunal's decision record for the dismissal decision provides as follows (CB 192):

The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 15 October 2020 at 10.30AM (NSW Time). The invitation stated that if she 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. 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).

After business hours on 13 October 2020 the Tribunal received a request from the review applicant to adjourn the hearing. In a letter emailed to the review applicant on 14 October 2020 the Tribunal informed the review applicant that her request had been refused and provided reasons for the refusal. The letter also stated that the hearing would proceed and if the review applicant did not attend the scheduled hearing a decision may be made to dismiss the application. Despite being informed that an adjournment had not been granted, the review applicant did not appear before the Tribunal on the day and at the scheduled time and place and has not contacted the Tribunal to explain her non-attendance.

In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.

1. The dismissal power in s 426A(1A)(b) is enlivened upon a Tribunal applicant having failed to appear at a Tribunal hearing to which they had been validly invited in accordance with the requirements of the Act (ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744 at [50] per Judge Kendall). For the reasons that follow, I am satisfied that the hearing invitation given to the applicant in the matter at hand complied with the requirements imposed by ss 425 and 425A of the Act, and I am not satisfied that the applicant has arguable prospects of successfully establishing the contrary position at a final hearing:

(1) The invitation indicated the date, time and place at which the applicant could attend the hearing, as is required by s 425A(1) (CB 168).

(2) The invitation was addressed to the applicant and was conveyed to her by email to her authorised recipient, email being an approved communication method for the purposes of ss 425A(2)(a) and 441A(5)(a) when read with s 441G (CB 166).

(3) The applicant was given a notice period for the hearing that exceeded the minimum prescribed by s 425A and reg 4.35D of the Migration Regulations 1994 (Cth).

(4) The invitation contained a statement explaining what would happen if the applicant did not attend the hearing, as is required by s 425A(4) of the Act (CB 170, 174).

1. The Tribunal notified the applicant of the dismissal decision by email sent to Mr Khan on 16 October 2020 (CB 188). The cover letter said that the applicant could apply in writing to reinstate her Tribunal application by 30 October 2020 (CB 190). However, the applicant did not apply for reinstatement of the Tribunal application that date (CB 199, [4]), or at all. Her failure to do so activated ss 426A(1B) and 426A(1E) of the Act, which provided as follows:

(1B) If the Tribunal dismisses the application [pursuant to s 426A(1A)(b)], the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.

Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

...

(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. On 2 November 2020, the Tribunal exercised the power in s 426A(1E) by confirming the dismissal decision (the confirmation decision) (CB 198). The Tribunal's decision record for the confirmation decision relevantly provides (CB 199, [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.

1. I am satisfied that the applicant was notified of the dismissal decision for the purposes of s 426B on the date the decision was transmitted to Mr Khan's email address, namely 16 October 2020 (CB 188). That email attached a written statement of decision that complied with the requirements of s 426B(2) (CB 192). That statement was conveyed to the applicant through email, a method specified in s 441A, as required by ss 426B(5)(b) when read with s 441G (CB 188). The statement was provided to the applicant within the 14-day period referred to in s 426B(5)(a). The applicant was also given a statement describing the effect of ss 426A(1B) to (1F), as required by s 426B(6) (CB 193-194). The 14-day period referred to in s 426A(1B) thus expired on 30 October 2020. It follows from the mandatory terms of s 426A(1E) that the decision the Tribunal made on 2 November 2020, namely, the confirmation decision, was the only decision the Tribunal could lawfully make given the applicant's failure to apply for reinstatement of her Tribunal application within the permitted period (AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10] per Perram J).

1. The applicant's application for judicial review contains one ground as follows (original reproduced):

I SOUGHT ADIOURNMENT OF 15 OCTOBER 2020 HEARING ON MEDICAL GROUND. WHICH WAS DECLINED LED TO MISCARRAGE OF JUSTICE MEMEMBER FAILED TO USE DISCRITlONERY POWER ON COMPELLING GROUNDS

1. A1 expands upon that complaint as follows (original reproduced):

That I am the applicant in this proceeding against AAT decision dated 15 October 2020 to refused adjournment of 15/10/2020 hearing.

Australian Multicultural charity requested adjournment of 15/10/2020 on my behalf on medical ground but Member failed to take medical certificate in to account to adjourn the hearing for natural justice.

1. I am not persuaded that the complaint that the Tribunal failed to take into account the medical certificate in determining the applicant's adjournment request has arguable prospects of success. The deficiencies in that certificate were the very basis upon which the Tribunal refused to grant the adjournment request (CB 182), and it was clearly open to the presiding Tribunal member to conclude, as she did, that the certificate did "not set out when you had your appointment with the medical practitioner, why you are unfit to give evidence at the scheduled hearing, or when the medical practitioner thinks you will be fit to give evidence at an oral hearing" (CB 182).
2. The Tribunal was required to determine the applicant's request for an adjournment in a legally reasonable manner, but I am not satisfied that the applicant has arguable prospects of proving that the Tribunal acted in a legally unreasonable manner. The medical certificate was wholly inadequate to support an adjournment request, because it did not state the nature of the applicant's medical condition (or that of her child) nor did it explain why those condition(s) would prevent the applicant from attending and participating effectively in the Tribunal hearing (MZZGY v Minister for Immigration and Border Protection [2014] FCA 488 at [13] per Davies as applied by Judge Lucev in the context of adjournment requests in the Tribunal in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 921).
3. The other basis for the applicant's adjournment request was an alleged need for babysitting services which could be more easily obtained if the hearing occurred in the afternoon rather than the morning (the Tribunal hearing being scheduled to start at 10:30am - CB 168), but the Tribunal cogently explained why it was not prepared to adjourn the hearing on that basis (CB 182), and the applicant has not sought to impugn that reasoning in her application for judicial review.
4. The reasonableness of the Tribunal's decision to proceed to dismiss the Tribunal application for non-appearance after the applicant failed to appear at the hearing needs to be seen in the context of the Tribunal effectively inviting the applicant to remake her adjournment application and setting out clearly what evidence would be needed for such a remade request to be successful (CB 182-183) (see, to similar effect, Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 413 at [51] per Judge Lucev). The Tribunal's decision to require the adjournment request to be supported by evidence of the kind identified in the Tribunal's letter dated 14 October 2020 cannot reasonably have come as a surprise to the applicant in circumstances where it reflected the Tribunal's practice direction and a link to that document had been provided in the hearing invitation (CB 169). I am not persuaded that the applicant would have reasonable prospects of successfully prosecuting her application for judicial review on the basis of a reasonableness complaint directed to the dismissal decision, and an argument of that kind directed to the confirmation decision would not enjoy arguable prospects of success given that the Tribunal had no choice but to make that decision after the applicant failed to seek reinstatement within the permitted period.
5. The applicant said during the reinstatement hearing before me that Mr Khan failed to pass on the Tribunal's email dated 14 October 2020 email to her, so she did not know that further medical evidence was required if she wanted to press her request for an adjournment of the Tribunal hearing. There was no suggestion from the applicant that this was anything other than a very unfortunate mistake by Mr Khan, and a mistake of that kind could not vitiate the Tribunal's decision (Cheng v Minister for Immigration and Citizenship [2011] FCA 1290 at [40]- [41] per Flick J) because, as the High Court of Australia held in Minister for Home Affairs v DUA16 [2020] HCA 46 at [15]; [2020] HCA 46; (2020) 271 CLR 550 at 560, there are sound reasons of policy why an administrative decision is not vitiated merely by bad or negligent representation or some other mishap that causes detriment to an applicant. It is unfortunate that the applicant inexplicably did not tell Tribunal about Mr Khan's error in the form of a reinstatement application in the wake of the dismissal decision, but, as I have previously said, her failure to make a reinstatement application within the permitted period left the Tribunal with no choice but to confirm the dismissal decision.
6. I should also say that at the reinstatement hearing the applicant said that she could belatedly provide medical documents about her state of health at the time of the Tribunal hearing if given time to do so, but I declined that request because the validity of the Tribunal's decision not to grant the relevant adjournment needs to be assessed against the materials the Tribunal had before it when it made that decision, and any materials the applicant may now be able to obtain by definition would not have been before the Tribunal.

Conclusion on whether judicial review application has arguable prospects

1. I am not satisfied that the applicant has arguable prospects of successfully prosecuting her application for judicial review. This matter militates heavily against the granting of the reinstatement application. As Mortimer J (as her Honour then was) said in CAL15 at [4]:

It is not fair to exercise a discretion [to reinstate] favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.

1. In light of all the foregoing matters, I am not satisfied that it would be in the interests of justice to reinstate the application for judicial review. The reinstatement application should therefore be dismissed.
2. In the event the reinstatement application was dismissed, the Minister sought a costs order fixed in the sum of $1,100. I am satisfied that costs should follow the event. I am satisfied that the relatively modest amount claimed by the Minister is appropriate in the circumstances given the nature of the work the Minister has had to do to respond to the reinstatement application, which has included reviewing the reinstatement application and supporting affidavit, drafting written submissions, and preparing for and attending the hearing of that application.

I certify that the preceding 37 (thirty-seven) numbered paragraphs are a true copy of the Reasons for Decision of Judicial Registrar Cummings.