FWE25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 529

1. This is an application to review a decision made by a registrar of this Court to dismiss a reinstatement application pursuant to a delegated power. The power of review is found in s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Rule 3.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules) makes clear the review proceeds de novo, which means the review is done from scratch. That means the Court does not focus on what the registrar concluded in their decision dated 20 January 2026. Rather, the Court addresses itself to the same question the registrar had to answer and reaches its own conclusion on the merits having regard to the evidence tendered before the registrar (and any additional material admitted by leave pursuant to r 3.08(2)(b)).
2. The question in this case is whether Mr FWE25's application for judicial review should be reinstated after it was dismissed by a registrar on 24 November 2025 after the applicant failed to appear at a call-over.
3. As a formal matter, the question before the registrar who conducted the reinstatement hearing - and therefore the question before me - was whether to exercise the discretion contained in

r 24.04 of the Rules. That provision says relevantly:

The Court may vary or set aside a judgment or order after it has been entered if:

1. When I address myself to that question, I must consider what criteria might be applied and what considerations I should have regard to. In other words, if I set aside the judgment and reinstate the proceedings, what I am focusing on is whether or not it is in the interests of justice to do so.[1] It is widely accepted that a number of things might be relevant to deciding whether a case should be reinstated after the proceedings were dismissed on account of non-appearance. Conventionally three things are considered:[2]

(1) Whether the applicant had a reasonable excuse or explanation for not turning up to the hearing;

(2) Whether any prejudice would accrue to any person if the proceedings were reinstated, although I am also conscious of the prejudice to the applicant if the matter is not reinstated; and

(3) The merits of the underlying application, which necessitates consideration of the applicant's prospects of succeeding if they were allowed to go ahead with their application for judicial review.

1. The applicant applied for a Protection (Class XA) (Subclass 866) visa. A delegate of the minister refused that application. The applicant sought review in the Administrative Appeals Tribunal, which came to be replaced by the Administrative Review Tribunal. At the time of the application in 2021, the applicant provided his contact details to the Tribunal. Those contact details included an email address, which is referred to at p 64 of the court book. The applicant indicated at the hearing before me that the email address in question actually belonged to a woman who was acting as an informal agent. The Tribunal did not know that because the application form said he did not have an agent.
2. The Tribunal wrote to the address (which the applicant provided) on 13 February 2025 and provided a link to a pre-hearing request for information that it wanted the applicant to complete. The Tribunal subsequently sent a hearing invitation (by email to the same address) on 6 March 2025 which advised of a hearing on 24 March 2025. A copy of the hearing invitation is reproduced in the court book at pp 78ff. A perusal of that invitation confirms the applicant was warned about the consequences of non-appearance at the hearing. The applicant did not respond to any of this correspondence. It would appear that was because (on his account) the hearing invitation and related correspondence was not passed on to him by the woman who controlled the email address.
3. The applicant did not appear at the hearing on 24 March 2025. The Tribunal (which by that point had become the Administrative Review Tribunal) dismissed the application for review under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). The Tribunal advised the applicant of the dismissal on the same day at the same email address. That email is reproduced at pp 93ff of the court book. The Tribunal confirmed the applicant could seek reinstatement, but the applicant did not do so (presumably because the applicant did not know). The Tribunal wrote again to the applicant's email address on 23 April 2025 to advise it had confirmed the dismissal decision.
4. Mr FWE25 sought judicial review of the dismissal decision. The application was filed on 24 May 2025. Curiously, the applicant used the same email address as he had used in the Tribunal: the email address which had been controlled by the female person acting as his agent. It is not clear why he did that. In any event, his grounds of review contend that:

(1) He was not treated fairly by the Tribunal;

(2) The Tribunal failed to consider his personal reasons; and

(3) The Tribunal failed to consider whether the applicant would face a real risk of significant harm.

1. On 21 October 2025, the applicant was sent a listing notice that summoned him to a call-over before a registrar on 24 November 2025. The listing notice which refers to the call-over was annexed to the affidavit of Madhav Fisher dated 16 January 2026. The listing notice appears to have been sent to the correct address provided by the applicant in the application for review and it included instructions about how to join the call. It warned: "It is very important you attend the callover. If you do not attend the callover, your matter may be dismissed and costs may be ordered against you." A further listing reminder (sent to the same address on 23 November 2025) also informed the applicant: "Please note that if you do not attend the Callover, and if no lawyer appears on your behalf, the Minister may apply for your matter to be dismissed, with an order that you pay the Minister's costs of the proceeding."
2. The applicant did not appear at the call-over on 24 November 2025. The registrar decided to dismiss the proceedings and made an award of costs in favour of the first respondent. The reinstatement application was filed on 13 December 2025. That application was accompanied by an affidavit from the applicant in which he explained he was unaware of the hearing date because he did not receive any notice of the Court hearing.

SHOULD THE DISCRETION TO REINSTATE BE EXERCISED?

Does the applicant have a reasonable excuse for the absence from the hearing which led to the dismissal orders?

1. An applicant is responsible for advising the Court of their contact details (and any changes to those details) so their application for review can proceed smoothly. The applicant did not do that in this case because he provided an email address that was managed by an agent who had represented him previously before the Tribunal and who had failed to communicate with him in connection with those proceedings. Having said that, the applicant explained in oral submissions that he had been in custody in connection with an offence and was on remand in the period between July and December 2025. On the face of it, being in custody is a reasonable excuse for not attending the call-over. While I accept the applicant was able to communicate with the Court (because he did so after the event), nonetheless, I accept he had a good reason for not appearing. That counts in favour of the exercise of discretion.

Is there any prejudice that might accrue to another party if reinstatement were ordered?

1. The minister does not point to any prejudice if the discretion were exercised, and I am not aware of any prejudice to anyone else if the proceedings were reinstated. The applicant will obviously be prejudiced if the proceedings are not reinstated, but the extent of that prejudice in a practical sense depends on whether the applicant was shut out of making a viable claim before the Court. This consideration does not weigh for or against the exercise of the discretion.

The merits of the underlying application for review

1. The real issue in this case is likely to be the merits of the underlying application for review. I have already set out the applicant's grounds of review.
2. I will firstly address the applicant's contention that the Tribunal failed to treat the applicant fairly when making its decision. There is no basis to this argument about fairness. The Tribunal complied with its procedural fairness obligations in accordance with s 55 of the ART Act. It invited the applicant to attend a hearing. The hearing invitation was regular and in time. It was sent to the address provided by the applicant. It included advice about what might happen in the event of non-appearance. The Tribunal's power to dismiss in s 99 of the ART Act was enlivened when the applicant failed to appear. There is nothing in the Tribunal's brief reasons (reproduced in the court book) to suggest the discretion to dismiss was not exercised reasonably: the Tribunal apparently turned its mind to the matters it was required to consider under s 99 of the ART Act. The applicant was promptly informed of the Tribunal's decision and advised of his right to apply for reinstatement. He did not take up that right. The Tribunal properly confirmed the dismissal decision without more. There is nothing unfair about the Tribunal's behaviour and it was not acting unreasonably.
3. The second and third grounds of review as drafted are misconceived to the extent they criticise the Tribunal for failing to consider personal circumstances and risk. The Tribunal was not required to consider those matters which go to the merits of the claim. It decided to dismiss the proceedings under s 99 without considering the merits when the applicant did not appear, and that course was open to it.
4. I am unable to discern any other error in the Tribunal's decision. While I have limited material before me, it is clear the applicant has very little chance of success if these proceedings were to be reinstated.

1. Having regard to these considerations, I am not satisfied that ordering reinstatement would be in the best interests of justice. The absence of merit in the underlying application for review in particular means there is simply no point in proceeding. The registrar's decision is therefore affirmed, including the order as to costs.

1. The minister made an application for costs in respect of this application. Mr Ryan, who appeared for the minister, sought costs in the amount of $1,365 in addition to the two previous costs orders that have been made in these proceedings. Mr Ryan said the amount sought approximates 70% of the solicitor-client costs actually incurred by the minister.
2. I explained to the applicant that an award of costs will be made when it is appropriate to do so. The applicant did not have anything to say in relation to costs.
3. I am satisfied it is appropriate to make an order of costs in this case. The minister has incurred costs and if the applicant is not called upon to make a contribution towards those costs, they will have to be met out of public monies. The first respondent has asked for an amount that is less than the amount that has actually been billed to the minister. I am satisfied having regard to the additional work done on the file which includes most obviously the attendance of Mr Ryan at the hearing, that $1,365 is an appropriate amount. I will make a costs order in that amount.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe delivered on 10 March 2026.

[1] FBS18 v Minister for Home Affairs [2019] FCAFC 196, [50]: per Flick, Robertson and Lee JJ.

[2] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, [7]: per Ryan J.