The application then went on to take issue with findings and legal conclusions in the decision dated 23 July 2025.
Submissions were subsequently filed.
The submissions sought reinstatement both under s 102 of the ART Act, and on the basis that the principle in Minister for Immigration and Multicultural Affairs v Bhardwaj[1] applied. It was not made clear in the submissions to which decision the Bhardwaj principle applied.
While the applicant never explicitly spells out the point, it appears that the application to reinstate under s 102 relies on errors in the statement of reasons for my decision published on 23 July 2025. That must be the case. Any application to reinstate under s 102 relying on errors in the decisions of Senior Member Thomae or Member Benjamin could not be entertained. Applications for reinstatement must be made within 28 days of the decision. These latest applications for reinstatement were not made until 4 August 2025. No request for an extension of time has been made. In those circumstances, to the extent that the application seeks to invoke s 102 a second time in relation to the decisions of those members, without an extension of time, they cannot be considered.
Even if applications were made to extend time to make a s 102 application it is doubtful that a further application for reinstatement could be made in circumstances where an application has already been made and determined. That however is not a question I need to answer in dealing with this application.
In light of this analysis, I am proceeding on the basis that the application is focussed exclusively on errors in my decision of 23 July 2025. That being the case the application is misconceived. There is no statutory power to reinstate an application on the basis that errors were committed when a prior reinstatement application was being considered. Any remedy for errors made in the consideration of the applicant's reinstatement application lie elsewhere.
In relation to the Bhardwaj principle, I explained in my decision of 23 July 2025 why the decisions of Senior Member Thomae and Member Benjamin to dismiss were not susceptible to being treated as nullities. If there is any suggestion that as a consequence of jurisdictional errors within the decision of 23 July 2025, that the decision should be treated as a nullity, again the submission is misconceived. If the decision were to be treated as a nullity, the applicant's substantive applications remain dismissed, and, at this point in time, no further application can be made for reinstatement. Treating the decision to refuse to reinstate the applicant's applications as a nullity would provide no benefit to the applicant.
In any event, given the respondent's opposition to these applications the case is not of a kind that would be appropriate for the application of the Bhardwaj principle.