ETF20 v Minister for Immigration and Citizenship

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicant, allocated the pseudonym ETF20, is a citizen of India who applied to the Department of Home Affairs (Department) for a Protection (Subclass 866) visa on 18 May 2016 (the visa application).
2. After the visa application was refused by a delegate of the (now) Minister for Immigration and Citizenship (Minister) on 26 August 2016 (the delegate's decision) the applicant applied to the (then) Administrative Appeals Tribunal (now Administrative Review Tribunal (Tribunal)) on 13 September 2016 for review of that decision.
3. On 15 October 2020, the Tribunal dismissed the application for review pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the Act) after the applicant had failed to attend the Tribunal hearing (the first Tribunal decision). The applicant did not apply for reinstatement of her application within 14 days of being notified of the dismissal, and the Tribunal, on 2 November 2020, confirmed the decision dismissing the application for review (the second Tribunal decision), pursuant to s 426A(1E) of the Act, as then in effect.
4. The applicant then made an application to this Court pursuant to s 476 of the Act for judicial review of the Tribunal's decision to dismiss her application on 11 November 2020.
5. The matter was listed for a callover before a Registrar of this Court on 12 June 2025. The applicant did not appear. The Registrar dismissed the application pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (as applicable at the time the orders were made) (the 2021 GFL Rules).
6. On 14 July 2025, the applicant filed an application in a proceeding seeking to set aside the orders made by the Registrar on 12 June 2025 (the reinstatement application).
7. On 26 August 2025, a Registrar of this Court dismissed the reinstatement application (the Registrar's decision).
8. By application pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) made on 17 September 2025, the applicant now seeks review of the Registrar's decision.
9. For the reasons that follow, the application for review of the Registrar's decision should be dismissed with costs.

1. At the hearing of the application for reinstatement on 2 December 2025, the following evidence was received:

(1) an affidavit of Sher Afzal Khan dated 29 Nov 2025 (inclusive of annexure A);

(2) an affidavit sworn by the applicant on 16 September 2025;

(3) an affidavit sworn by the applicant on 9 July 2025, in support of the reinstatement application;

(4) a court book, filed 29 January 2021, which was compiled by the first respondent and comprised of relevant documents from the Department's file and from the Tribunal concerning the visa application and the application for Tribunal review; and

(5) an affidavit affirmed by the applicant on 3 November 2020, annexing a copy of the second Tribunal decision.

1. The first respondent did not require the applicant nor Mr Khan for cross-examination. Mr Khan attended the hearing and assisted the applicant.

1. As at 12 June 2025, r 13.06(1)(c) of the 2021 GFL Rules provided as follows:

(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:

(a) adjourn the hearing to a specific date or generally;

(b) order that there is not to be any hearing, unless:

(i) the proceeding is again set down for hearing; or

(ii) any other steps that the Court or the Registrar directs are taken;

(c) if the absent party is an applicant - dismiss the application;

(d) if the absent party is a party who has made an interlocutory application or a cross‑claim - dismiss the interlocutory application or cross‑claim;

(e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.

(2) If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court or the Registrar thinks just.

1. The power to dismiss an application in default of an appearance by the applicant is also conferred in r 22.04 of the 2025 GFL Rules.
2. The reinstatement application before the Registrar proceeded in reliance upon r 17.05(2)(a) of the 2021 GFL Rules and was determined on 26 August 2025. The 2021 GFL Rules remained in effect until 1 September 2025, when the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (the 2025 GFL Rules) came into effect. There has been no relevant change to the rule governing the reinstatement application; the Court is empowered by r 24.04(a) of the 2025 GFL Rules to vary or set aside an order after it has been entered if it was made in the absence of a party.
3. As the present application made on 17 September 2025 seeks review of a decision made by a Registrar exercising delegated powers, a hearing de novo of the applicant's interlocutory application is required: r 3.08 of the 2025 GFL Rules.

Migration Act Provisions

1. Part 7 of the Act at the time of the Tribunal decisions governed the Tribunal's review of decisions concerning protection visas. Section 422B of the Act, which dealt with the question of natural justice, appeared in that part, and provided as follows:

422B Exhaustive statement of natural justice hearing rule

(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3) In applying this Division, the Tribunal must act in a way that is fair and just.

1. Sections 425 and 425A of the Act, as at the date of the Tribunal hearing, were as follows:

425 Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2) The notice must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4) The notice must contain a statement of the effect of section 426A.

426A Failure of applicant to appear before Tribunal

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.

Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.

Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

(1B) If the Tribunal dismisses the application, 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.

(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:

(a) if it considers it appropriate to do so - reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or

(b) confirm the decision to dismiss the application, by written statement under section 430.

Note 1: Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.

Note 2: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1D) If the Tribunal reinstates the application:

(a) the application is taken never to have been dismissed; and

(b) the Tribunal must conduct (or continue to conduct) the review accordingly.

(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.

Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear

(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.

1. In relation to methods of transmission and communication by the Tribunal, and the time at which such communications are taken as having been received, ss 441A and 441C of the Act provided, inter alia:

441A Methods by which Tribunal gives documents to a person other than the Secretary

(1) For the purposes of provisions of this Part or the regulations that:

(a) require or permit the Tribunal to give a document to a person (the recipient); and

(b) state that the Tribunal must do so by one of the methods specified in this section;

Transmission by fax, email or other electronic means

(5) Another method consists of a member or an officer of the Tribunal, transmitting the document by:

(a) fax; or

(b) email; or

(c) other electronic means;

to:

(d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or

(e) if the recipient is a minor - the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.

441C When a person other than the Secretary is taken to have received a document from the Tribunal

(1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).

Transmission by fax, email or other electronic means

(5) If the Tribunal gives a document to a person by the method in subsection 441A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

1. When deciding whether to reinstate an application that has been dismissed due to the non-appearance of the applicant the Court is required 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 (FBS18) (per Flick, Robertson and Lee JJ at [50] to [52]). The Full Court there observed that there are three factors that are often considered in such applications, namely:
   1. a reasonable explanation for the applicant's absence at the trial or hearing;
   2. material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
   3. no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
2. However, their Honours rejected an argument that the factors above are mandatory considerations; rather, they are potential aspects of what is in the interest of justice in any case and are to be considered so far as they are relevant in any particular matter.
3. If there is no arguable case on judicial review, it is unlikely that the interests of justice would be served by exercising the discretion to reinstate: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15) at [4], per Mortimer J (as her Honour then was). There can be no point in directing the resources of the justice system to hearing an unarguable case. However, in assessing whether a ground of review is "arguable", the Court should not expect a fully developed ground of review to be presented, particularly in circumstances where an applicant is non-legally trained and non-English speaking. Rather, if the ground is not illogical, fanciful, devoid of merit, or impermissible, but has a level of rationality and a basis in the material before the Court, the threshold will be met: CAL15 at [6].

1. The applicant is a citizen of India who first entered Australia on 26 January 2007 as the holder of a student (subclass 572) visa.
2. On 22 April 2009, the applicant applied for a skilled graduate (subclass 485) visa, and on 30 June 2009, applied for a skilled regional sponsored (subclass 487) visa. On 18 January 2010, both the subclass 485 and 487 visa applications were refused by the Department. She challenged those refusals but was ultimately unsuccessful in securing the visas.
3. On 18 May 2016, the applicant made the application for the protection visa the subject of the current proceeding before this Court.

1. The applicant made an application for the Protection (subclass 866) visa to the Department on 18 May 2016. The applicant listed her email address (the Yahoo address) in the required portion of the visa application form. Annexed to the visa application was a completed form appointing an "authorised recipient", Mr Khan, a member of the Australian Multicultural Charity, to receive all documents. An email address (the Charity address) was provided on the appointment of an authorised recipient form.
2. The applicant's claim for protection was based on fears of religious persecution if she were to return to India. In a statement annexed to the visa application, the applicant stated that she converted from Hinduism to become a Jehovah's Witness Christian in December 2015. She stated that her family became 'very angry' about her religious conversion, and that threatened to have her killed if she returned to India. The applicant claimed to fear fundamentalist Hindus in India, and claimed she would be unable to practice her religion in India. She further claimed that she had received a 'killing threat from some Hindus over the phone in Ingleburn'.
3. On 26 August 2016, the visa application was refused by the delegate (the delegate's decision). A copy of the notification of refusal letter and the decision record which it annexed was provided to the authorised recipient by post.
4. The delegate recorded that they were not satisfied that the applicant met the requirements of ss 36(2)(a) or 36(2)(aa) of the Act, as she was not a person in respect of whom Australia had protection obligations. The delegate was unable to conclude that the applicant was a genuine convert to the Jehovah's Witness religion. The delegate formed the view, having regard to the applicant's immigration history, that the application for the protection visa was a last resort indicating that her claimed fear of harm was not genuine. The delegate was also not satisfied that the applicant faced a real risk of significant harm, should she return to India.

1. On 13 September 2016, the applicant made an application to the Tribunal for review of the delegate's decision. In the Tribunal application, the applicant nominated Mr Khan as her authorised recipient and representative.
2. On 14 September 2016, the Tribunal sent to the applicant (via email to Mr Khan) an acknowledgement of application letter and attached a fact sheet. This letter, inter alia, set out the following:

It is important that you:

• tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;

• tell us immediately if your personal circumstances change and this is relevant to the review of the decision;

...

1. On 6 August 2018, Mr Khan wrote a letter to the Tribunal advising that the applicant had given birth to a daughter in January 2018 and wished for the child to be included on her mother's protection visa application. The letter contended that the Department was notified of the daughter's birth in July 2018.
2. On 8 October 2018, the Tribunal sent to the applicant (via email to Mr Khan) a letter regarding the applicant's availability to attend a hearing. The letter stated the following on its first page:

Your file is now being prepared for allocation to a tribunal member. As this may result in a hearing being scheduled:

• If you have any additional evidence that is relevant to your application, please send this to us as soon as possible.
• If the details of your representative have changed, you should provide the Tribunal with the details of your representative as soon as possible.
• Advise us as soon as possible if there are any reasons why you may not be able to attend a hearing at any time in the coming months.

Please note: once a hearing date has been set, we will only change the date if we are satisfied that there is a very good reason to do so.

1. On 16 December 2018, the applicant sent an email to the Tribunal, from her Yahoo address. The email stated:

Dear Nathan,

Could you please provide me copy of immigration you have received from immigration

(errors in original)

1. On 17 December 2018, the Tribunal responded to the applicant, at the Yahoo address and copying in Mr Khan at the Charity address, as follows:

The tribunal understands from your last advice that all tribunal correspondence is to be sent to your advisor, Sherafzal Khan, at the following email: [the Charity address].

If this is not the case, and the recipient/correspondence details for your case have now changed, you must provide this information in the above attached Change of Contact form.

Additionally, you need to clarify what you mean by wanting a copy of 'immigration', as there is no such document of this name.

Regards,

1. On 14 September 2020, the Tribunal sent to the applicant (via email to Mr Khan at the Charity email address) information about attending an in-person hearing. The attached letter stated that the Tribunal was in the process of scheduling an in-person hearing for the applicant's application for review on either 14 or 15 October 2020 from 10:00am until 2:00pm, and that the hearing would likely be heard jointly with the applicant's husband's application for review. The applicant was invited to respond to the Tribunal by no later than 21 September 2020 advising:

(a) The number of people who will be attending the hearing;

(b) Whether the authorised agent will be attending;

(c) The number of witnesses, and their respective methods of attendance;

(d) Whether the applicant requires a Punjabi (or other) interpreter; and

(e) Whether she is available on either 14 or 15 October 2020.

1. There is no material contained in the court book which indicates that the applicant provided a response to that correspondence.
2. On 25 September 2020, the Tribunal contacted Mr Khan to confirm the number of attendees for the hearing. A case note of that contact records that he advised that the applicant did not wish to bring any witnesses, and that the applicant's child had some health problems. He stated that he would speak to the applicant the following day and would provide the Tribunal with further information by 28 September 2020. There is nothing in the court book which indicates to the Court that such further information was provided by any means, written or otherwise.
3. On 29 September 2020, the Tribunal sent to the applicant (via email to Mr Khan at the Charity email address) an invitation to attend a hearing at 10:30am on 15 October 2020 in Hearing Room 6.08, 83 Clarence Street, Sydney NSW 2000 (the invitation). The letter directed the applicant's attention to the COVID-19 Special Measures Practice Direction - Migration and Refugee Division (COVID Direction) and contained a hyperlink to that document.
4. The invitation attached a fact sheet with information about hearings in the Tribunal, and a response to hearing invitation form. The invitation also set out the following under a bolded heading 'Other things to note':

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.

We may make a decision at the end of your hearing.

The enclosed leaflet 'Information about hearings' contains important information about hearings, dismissals and your rights.

(emphasis added)

1. The enclosed fact sheet also contained similar information, and relevantly stated:

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.

If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.

(underlining added; bold in original)

1. Two days prior to the scheduled hearing, on 13 October 2020, Mr Khan sent a letter by email to the Tribunal requesting that the hearing be postponed (the adjournment request). The letter stated that the applicant and her then two-year-old daughter were sick and therefore unable to attend the hearing on 15 October. It went on to state that an afternoon hearing would be more suitable for the applicant in future, so she can arrange a babysitter for her daughter, and also attached a medical certificate in support of the adjournment request. The medical certificate was dated 13 October 2020 and stated that the applicant had a medical condition and would be 'unfit for usual duties on 15/10/2020' (the medical certificate).
2. The following day, on 14 October 2020, the Tribunal responded to Mr Khan, declining the adjournment request. The Tribunal stated that the adjournment request did not comply with para 6.18 of the COVID Direction, as the medical certificate failed to provide details regarding when the applicant had an appointment with a medical practitioner, why she was unfit to give evidence, or when the medical practitioner believed that she would be fit to give evidence at a hearing. A link to the COVID Direction was again provided in the covering email to the Tribunal's letter refusing the adjournment request. The Tribunal went on to respond to the applicant's asserted preference for an afternoon hearing, by stating that the Tribunal, by its correspondence of 14 September 2020, sought to ascertain the applicant's availability to attend a hearing, and that the applicant had not responded to that correspondence. The letter then reproduced details of the date, time, and place of the hearing, all of which remained unchanged.
3. On 15 October 2020, the Tribunal conducted the hearing. There was no appearance by or on behalf of the applicant at the hearing before the Tribunal, nor was any written evidence presented to the Tribunal on behalf of the applicant. The Tribunal's hearing record contains a large handwritten note running diagonally across each page of the hearing record stating 'NO SHOW'.
4. The hearing record also contains a further handwritten notation from a Tribunal staff member recording '11.06 15/10/20' above a set of initials. I infer that the hearing, which commenced at 10:30am, was concluded at 11:06am as the notation reflects the same time that the interpreter booked to assist in the hearing was also excused, as recorded on the hearing record.
5. The applicant made no claim in her application or affidavits that she in fact attended the Tribunal hearing, or that she made any attempt to do so, or that she made any attempt to contact the Tribunal to explain her inability to attend, aside from the adjournment request which was refused prior to the hearing date.

1. On 15 October 2020, the Tribunal made a decision to dismiss the application pursuant to s 426A(1A)(b) of the Act on the basis of the non-appearance of the applicant at the hearing (the first Tribunal decision).
2. The next day, on 16 October 2020, the Tribunal notified the applicant (via email to the authorised representative) of the first Tribunal decision, by sending a notification of decision letter, which attached a written record of the Tribunal's reasons and a fact sheet with information about dismissal of Tribunal applications. The cover letter contained the following information on the front page:

You may apply to us, in writing, for reinstatement of the application by 30 October 2020. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.

(emphasis in original)

1. The fact sheet similarly contained the following information on its front page:

What happens if an application is dismissed?

Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.

On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.

If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.

A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.

(emphasis in original)

1. The applicant did not seek reinstatement of the matter in the Tribunal within the 14-day period.
2. On 2 November 2020, the Tribunal made a further decision confirming its first decision to dismiss the applicant's application for review (the second Tribunal decision).
3. On that same date, the Tribunal sent an email to the applicant (via Mr Khan at the Charity email address) attaching a further covering letter, along with the second Tribunal decision and a fact sheet with information about dismissal of applications.

1. On 11 November 2020, the applicant filed an originating application with this Court pursuant to s 476 of the Act.
2. The applicant's originating application contained the following sole ground (as per original):

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

1. The applicant listed the Charity email address in the nominated 'Email' box on the originating application form, and identified Mr Khan as the person to whose attention correspondence should be directed.
2. On 26 May 2025, the Court's migration team sent an email to the first respondent and to the applicant at the Charity email address. That email relevantly stated the following (emphasis in original):

Please be advised that your matter has now been listed for Callover before Judicial Registrar Cummings on Thursday 12 June 2025 at 12:00pm AEST (NSW time)(11:30am ACST)(SA time)).

The Callover listing will be conducted by telephone (dial in). You must join the telephone hearing 15 minutes before it starts (at 11:45am AEST) by dialling [redacted] followed by the conference ID: [redacted]

The Callover listing is not the final hearing and you will not be expected to make legal arguments.

There will be other matters listed at the same time. You must wait on the line until your matter is called and then speak when the Registrar asks for your appearance. Do not hang up until your matter has been called and dealt with.

If you experience any difficulty in dialling into the telephone hearing, please call 1300 720 980 and ask to be put through to the Migration Team.

It is very important you attend the Callover listing. If you miss the Callover listing and do not appear by telephone, your matter may be dismissed and costs may be ordered against you.

1. On 11 June 2025, the first respondent sent an email to the applicant (at the Charity email address) referring the applicant to the correspondence from the Court's migration team. The first respondent's email stated (inter alia):

Otherwise, and further to the email correspondence from the Court, we remind you that this matter is listed for callover before Judicial Registrar Cummings on Thursday 12 June 2025 at 12:00pm AEST (NSW time)(11:30am ACST)(SA time)).

Instructions for dialling into the callover are contained in the email from the Court (below) dated 26 May 2025.

Please note that you are required to attend the callover and, if you do not appear when the matter is called, the first respondent will seek orders that your application be dismissed with costs.

(emphasis added)

1. The callover proceeded before the Registrar on 12 June 2025. There was no appearance by or on behalf of the applicant at that listing. The Registrar made orders that the application be dismissed for non-appearance pursuant to r 13.06(1)(c) of the 2021 GFL Rules. A copy of those orders was sent to the parties on that same day by email, including to the authorised representative's Charity address, which was listed on the originating application filed with the Court.
2. On 10 July 2025, the applicant filed an amended notice of address for service form with the Court. This form listed a Yahoo email address as the email address for contact with the applicant.
3. On 14 July 2025, the applicant filed an application in a proceeding seeking reinstatement. The applicant filed an affidavit in support of the application in a proceeding. That affidavit set out the following (as per original):

I am the APPLICANT IN THIS MATTER SAY ON OTH THAT I DID NOT RECIVE NOTICE OF HEARING FROM THE COURT THEREFORE I DID NOT APPER ON HEARING I COME TO KNOW ABOUT THE HEARING THE DEAPARTMENT OF IMMIGRATION THAT MY BRIDGINGVISA E EXPIRING ON 10TH OF JULY 2025 THEREFORE IM SEEKING TO SET ASIDE REGISTRAR ORDER TO DISMISS THE APPLICATION .

1. The application for reinstatement was heard before a Registrar of this Court on 26 August 2025. The Registrar made orders dismissing the application in a proceeding seeking reinstatement, with costs. Reasons for the decision were published and circulated to the parties on that same date (see ETF20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1397).
2. On 17 September 2025, the applicant filed an application for judicial review of the Registrar's decision to dismiss her application in a proceeding for reinstatement, being the application for determination before this Court.
3. On 26 September 2025, that application was listed for a directions hearing and directions were made for the preparation of the matter for hearing on 2 December 2025.
4. On Saturday 29 November 2025, the applicant sent by email to my Chambers a handwritten letter dated 28 November 2025 on the letterhead of Australian Multicultural Charity. The letter was addressed to the solicitor for the first respondent, and stated:

I am seeking your consent for the adjournment of the hearing dated 02/11/25 attached is the copy of my affidavit.

1. Attached was an affidavit of Mr Khan, in which he described himself as the CEO of the Australian Multicultural Charity (AMC). The affidavit was dated 29 November 2025. Mr Khan stated that AMC has been helping the applicant in the Tribunal and in her proceeding before this Court. He also claimed that he was evicted without notice from his property and that the landlord collected all court files including the applicant's file. He claimed that he came to Australia on 20 November 2025 and without the files of the Tribunal and 'Federal court' (presumably this Court) the applicant would be prejudiced. He claimed to be seeking an adjournment in order to get the file from the landlord.
2. The affidavit annexed a letter appearing to be from a lawyer, to the Yahoo email address on the applicant's notice of appearance. Although the date of that email purports to be 16 July 2025, the body of the email includes the following statement "possession was taken lawfully by our client on or about 27 November 2025": that is, a letter purporting to be from July of this year was referring to possession having been taken at a date after the date of the letter. The letter goes on to include the claim that the client of the author held items of property that were taken when the property was seized "for a considerable amount of time". Given the letter refers to the seizure as having occurred on 25 November 2025 (4 days prior to the date of the affidavit), I am not satisfied that the attached document is reliable.
3. My Chambers forwarded the email to the solicitors for the first respondent.
4. I determined not to adjourn the hearing, but to hear from the applicant at the commencement of the scheduled hearing on 2 December 2025.
5. At the hearing Mr Khan, appeared and provided assistance to the applicant. He sought, on the applicant's behalf, an adjournment of the hearing, claiming that documents concerning the applicant's application that had been in his possession had been taken from the premises he had been renting when the landlord evicted him in July 2025.
6. The application for adjournment was opposed.
7. I declined the application. Although Mr Khan claimed the missing documents were crucial to the applicant's case, he was unable to be more specific about them and could not provide a satisfactory account of any steps he had taken to recover the documents since that time. The information he provided did not support a conclusion that there was any prejudice to the applicant as a consequence of loss of any documents, and did not otherwise provide a proper basis to adjourn a hearing of a review of a Registrar's decision, which applications are required under the 2025 GFL Rules to be heard as soon as possible.

Whether the applicant has an adequate explanation for the non-appearance

1. The applicant swore in her affidavit of 9 July 2025 that she did not receive notice of the hearing from the Court and therefore did not appear. She said that she only found out about the hearing from the Department that her bridging visa was expiring on 10 July 2025.
2. I am satisfied that notice of the hearing was sent on 26 May 2025 to the email address nominated by the applicant in her application, being the Charity email address that she provided for the purpose of her protection visa application in 2016, and her application to the Tribunal for review. The solicitors for the first respondent sent a further email to that address on 11 June 2025, reminding the applicant of the listing. The applicant does not deny that the email was received at that address, nor does she make any claim about the currency of the address at that time. It was incumbent on the applicant to keep the Court informed of her contact details.
3. Nor has the applicant sought to call any evidence concerning the issue from Mr Khan, who was described in the visa application and the application to the Tribunal as contactable at that email address. Although Mr Khan has provided the affidavit as set out above, he has not provided an affidavit addressing the email notifying the applicant of the callover. I infer that any evidence Mr Khan could give about the matter would not assist the applicant.
4. I am satisfied that the applicant was properly notified of the callover to her nominated email address. I am not satisfied that she has provided an adequate explanation for her non-appearance.

Whether there is any prejudice to the Minister if the matter is reinstated

1. The Minister does not identify any particular prejudice.

Whether the applicant has an arguable case on judicial review

1. The applicant cites a single ground, namely that declining the adjournment she sought on medical grounds was a miscarriage of justice.
2. That ground appears to be an assertion that the decision to refuse the applicant's adjournment application was legally unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li).
3. The Court may find that a discretion has been exercised unreasonably where a decision lacks an evident and intelligible justification. Alternatively, the Court may reach the same conclusion where the decision has been made in a manner that is arbitrary, or capricious, of which abandons common sense: Li at [28], per French CJ. A Court reviewing the exercise of a discretionary power on that basis is not entitled to undertake a review of that decision on its merits and substitute its own view for that of the decision-maker: Li at [66], per Hayne, Kiefel & Bell JJ. The test is a stringent one.
4. The decision in the present matter to decline the applicant's adjournment application had, demonstrably, an evident and intelligible justification. The letter from the Tribunal advising the applicant that the application was refused as it did not comply with paragraph 6.18 of the COVID Direction because the medical certificate the applicant provided did not set out when she had seen the medical practitioner, why she was unfit to give evidence, or when she would be fit to do so.
5. The discretion was, demonstrably, not exercised in a manner that was arbitrary or capricious; the letter invited the applicant to submit medical evidence that complied with the COVID Direction if she wished to have the Tribunal member reconsider her request for an adjournment. There was no evidence that the applicant attempted to do so.
6. The applicant did not attempt to elaborate her case to any extent, notwithstanding that she must have been aware, from the Registrar's decision refusing to reinstate her application, that the absence of an arguable ground was a matter that would militate against reinstatement. The applicant's submissions did not advance an arguable case of error by the Tribunal with sufficient merit to warrant the reinstatement of the application. Mr Khan submitted that the refusal of the adjournment caused the applicant serious prejudice. Prejudice alone does not identify any basis for a finding of error. The applicant's representative also made submissions about the strength of the applicant's claims for protection, engaging with the delegate's doubts as to whether she had genuinely converted to be a Jehovah's Witness. Those submissions did not identify an arguable basis to find error in the Tribunal's decision.

1. In the final analysis, the applicant's failure to identify an arguable ground means that there would be no utility in setting aside the Registrar's orders and reinstating the application. The interests of justice would not be served by the making of such an order. Accordingly, the application for review must be dismissed, with costs. I will hear the parties as to the quantum of those costs.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.