PRACTICE AND PROCEDURE--application for review dismissed--application to reinstate under s 102 of Administrative Review Tribunal Act 2024 -- application made within 28 day period--not a reviewable decision--not dismissed in error--application for reinstatement refused

Administrative Appeals Tribunal Act 1975 (Cth) ss 12, 97, 102

Administrative Review Tribunal Act 2024 (Cth) ss 12, 97, 102, 123, 172

JTBJ and Secretary, Department of Social Services (Social security) [2025] ARTA 464

Rachelle and Victorian Institute of Teaching [2023] AATA 2722

Re Rachelle and Victorian Institute of Teaching [2025] ARTA 802

Re White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712

Re Walls and Comcare [2015] AATA 697

Victorian Institute of Teaching v Rachelle [2024] FCA 958

1. On 13 October 2025, the Applicant requested that her application for review of a decision lodged with the Administrative Review Tribunal (Tribunal) on 22 September 2025 be reinstated under s 102 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
2. This followed the Applicant being advised on 12 October 2025 that the Tribunal had dismissed her application under s 97 of the ART Act on the basis that the decision she wanted the Tribunal to review was not subject to review by the Tribunal.
3. An interlocutory hearing was held on 12 November 2025. At the hearing, I explained to the Applicant why I considered the Registrar's decision to dismiss her applicant to be correct but also indicated that I would provide a written decision and reasons to assist her with pursuing alternative avenues.
4. For the reasons outlined below, I refuse to reinstate these proceedings as dismissed by the Tribunal on 12 October 2025. I do not consider that the application for review was dismissed in error. The Tribunal does not have jurisdiction to review the decision the Applicant wants reviewed.

1. The decision the Applicant wants reviewed is a decision of the Tribunal made by Senior Member Nikolic dated 20 June 2025 that found the Applicant was not fit to teach and that her teaching registration with the Victorian Institute of Teaching (Institute) should not be reinstated (second Tribunal).[1]
2. The background to that decision is that on 25 August 2023 a differently constituted Tribunal (first Tribunal) set aside a decision of the Institute dated 28 July 2022 to cancel her teacher's registration and substituted it with a decision to reinstate it.[2]
3. The Institute appealed the first Tribunal's decision to the Federal Court of Australia and on 23 August 2024 Justice McEvoy quashed the first Tribunal decision and remitted the matter for reconsideration by a differently constituted Tribunal.[3] The matter being subsequently determined by Senior Member Nikolic.
4. On 12 August 2025, the Applicant made an application to the Guidance and Appeals Panel (GAP). The Applicant ticked the boxes in that application to indicate that the basis for seeking a referral to the GAP was because the decision raised an issue of significance to administrative decision-making and it was also affected by an error of fact or law. The specific reason provided was essentially that events that have occurred in the Applicant's private life should not impact on her ability to teach. A contention which she considered had already been accepted by the first Tribunal decision.
5. In the GAP application the Applicant describes the order she is seeking as a 'complete overhaul' of the decisions made that she is not fit to teach. The Applicant claimed that the evidence the Institute relied upon in the Federal Court case was unreliable.
6. On 14 August 2025, the Applicant was advised that her case was not eligible to be referred to the GAP because the application was not made within the period of 28 days after the second Tribunal gave its statement of reasons. Further, the application did not include a request for an extension of time nor did it raise any special circumstances as to why an extension of time should be considered.
7. The letter from the Tribunal advising the Applicant of the outcome of her GAP application informed her that if she thought the Tribunal decision was wrong, and if she had not already done so, she could appeal to the Federal Court of Australia.
8. The Applicant had already appealed the second Tribunal decision to the Federal Court. The Applicant provided the Tribunal with a copy of an email from the Federal Court Registry confirming that it had received her notice of appeal on 18 July 2025 and that she was within time. However, she was also advised that before her documents could be processed, she needed to make some administrative amendments to her notice of appeal.

1. Section 102 of the ART Act provides the Tribunal with a discretion to reinstate an application that was dismissed in error. Section 102(5) of the ART Act requires an application for reinstatement to be made within 28 days after the notice that the application has been dismissed is received.
2. The Applicant has made the application for reinstatement within 28 days of the application being dismissed.
3. Section 102(6) of the ART Act provides that if 'the Tribunal considers that the application was dismissed in error', it 'may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.'
4. Kyrou J summarised in JTBJ and Secretary, Department of Social Services[4] the types of errors that fall within subsection 102(6) of the ART Act.
5. At [46], Kyrou J says that it is not possible to comprehensively set out the types of errors that may fall within s 102(5) and (6) of the ART Act but nevertheless provided some examples of errors that can be regarded as clearly falling within the predecessor provision of s 102(5) and (6), namely s 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth).[5]

1. After reviewing the history of the application and the Tribunal's decision to dismiss I can find nothing to suggest that the application was dismissed in error.
2. Section 12 of the ART Act provides that a decision is a reviewable decision if an 'Act or legislative instrument provides for an application to be made to the Tribunal for a review of the decision'.
3. The ART Act does not generally provide for an application to be made to review a decision of the Tribunal.
4. The avenues available to the Applicant under the ART Act which she has already been pursued are to:

(a) make an application to the President under s 123 of the ART Act to refer a decision of the Tribunal to the GAP > > (b) appeal to the Federal Court on a question of law under s 172 of the ART Act.

5. In this regard, I note that it is still open to the Applicant to:

(a) request an extension of time in relation to an application to the GAP > > (b) follow-up with the Federal Court Registry regarding her appeal application that was made on time.

Can the application be reinstated in other specified circumstances?

1. The power to reinstate in s 102(6) of the ART Act is discretionary. Previous Tribunal decisions have set out the considerations that may be relevant to the exercise of that discretion.[6] Given that the application was not dismissed in error, I am not required to consider the discretionary factors relevant to the consideration of whether reinstatement should occur.
2. For completeness, I note that the application cannot be reinstated under s 102(7) and there is no other provision in the ART Act that permits the application to be reinstated at the Applicant's request.
3. Therefore, I am unable to conclude that the application can be reinstated under s 102(6) of the ART Act.

[1] Re Rachelle and Victorian Institute of Teaching [2025] ARTA 802 at [29].

[2] Rachelle and Victorian Institute of Teaching [2023] AATA 2722.

[3] Victorian Institute of Teaching v Rachelle [2024] FCA 958.

[4] (Social security) [2025] ARTA 464.

[5] Ibid. Examples include when an application for review is dismissed due to a significant procedural error; where an application for review is dismissed on the basis that the applicant consented to the dismissal, when in fact the applicant did not consent; where an application for review is dismissed on the basis that the applicant did not appear at a Tribunal case event, and the applicant did in fact appear.

[6] JTBJ and Secretary, Department of Social Services (Social security) [2025] ARTA 464 at [76]; Re White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712; Re Walls and Comcare [2015] AATA 697.