What can I do if the Federal Circuit and Family Court of Australia has dismissed my judicial review application for non-appearance?

Most applications for judicial review of migration decisions – other than those made in relation to ‘character-related’ cancellations and refusals – are decided by Division 2 of the Federal Circuit and Family Court of Australia (Circuit Court).

Importantly, the Circuit Court’s Rules allow the Court to dismiss a judicial review application immediately and without notice if an applicant fails to appear before the Court when required. For this reason, it is vital that you (or your legal representative, if you have one) appear before the Court at the time and date required.

When are appearances required?

Throughout the course of a judicial review application, there are a number of different occasions the applicant may need to appear before the Court. That appearance may be required in person, by video-link or by phone. Some events which the Court may require you to appear at may include:

1. a First Court Date or Directions Hearing – a brief hearing at which a Registrar or Judge of the Court sets out the steps to be taken by the parties in the lead-up to final hearing;
2. a Callover – a brief hearing held to determine when an application will be set down for final hearing; and/or
3. Final Hearing – the longer hearing at which a judge will consider your application and arguments before making a decision.

When the Court sets your application down for any type of hearing it will notify you of the need to appear. The Court will also let you know the method(s) via which you can appear (e.g., in person, by videolink or by phone).

What if I fail to appear?

If you fail to appear before the Court, whether that is at a directions hearing, callover, or final hearing, the Court can dismiss your application without considering the merits of your application. The Court has the power to do this under r 13.06(1)(c) of the Circuit Court Rules.

What if my judicial review application is dismissed for non-appearance?

Where the Circuit Court dismisses an application for judicial review for non-appearance, you can apply to the Circuit Court to set aside the dismissal under r 17.05(2)(a) of the Circuit Court’s Rules. Sometimes this process is described as ‘Applying for reinstatement.’

An application under r 17.05 must be made via an ‘Application in a case’ and should be supported by an affidavit explaining the reasons for your non-appearance. In deciding whether to set aside the dismissal, the Court may consider not only the reasons for your non-appearance, but any other matter the Court considers relevant, such as the prospects of your application for judicial review if it is ‘reinstated.’

What is the timeframe for making an application for reinstatement under r 17.05?

There is no prescribed timeframe for making an application under r 17.05.

However, if you have been granted a bridging visa on the basis of your judicial review application it will cease 28 days after your application for judicial review, including any proceedings on appeal, are completed.

Further, one of the factors the Court will take into account in deciding whether to set aside the dismissal for non-appearance is the length of any delay between the making of the dismissal order and the filing of an application under r 17.05.

In those circumstances, any application under s 17.05 should be filed as soon as possible and, if you hold a bridging visa granted on the basis of your judicial review application, within 28 days after the Court first dismisses your application for non-appearance under s 13.06(1)(c).

What if the Court does not set aside the dismissal for non-appearance?

A Court’s refusal to set aside a dismissal for non-appearance is considered an ‘interlocutory,’ rather than final order (see AJC15 v Minister for Immigration and Border Protection [2016] FCA 562). Therefore, an applicant requires leave to appeal the decision to the Federal Court of Australia; there is no automatic right of appeal to the Federal Court of Australia. An application for leave to appeal must be filed within 14 days after the date on which the Circuit Court refused to set aside the dismissal decision.

Do I need to obtain legal advice?

If your application for judicial review of a migration decision application has been dismissed for non-appearance under r 13.06(1)(c) of the Circuit Court Rules, we strongly recommend obtaining expert legal advice.

At Hannan Tew Lawyers, we offer free, 20-minute consultations to discuss judicial review applications, including applications that have been dismissed for non-appearance. At this consultation we will provide you with advice in relation to the options available to you following a dismissal for non-appearance. We will also provide you with preliminary advice regarding the prospects of your judicial review application. If we consider that your judicial review applications has reasonable prospects of success, we may offer to act on your behalf in relation to your application to set aside the dismissal and, if the dismissal is set aside, your application for judicial review.

You can book a free 20-minute judicial review consultation with our Joel McComber, an experienced judicial review lawyer, here.

Summary

1. If the Federal Circuit and Family Court of Australia dismiss your application for judicial review for non-appearance under r 13.06(1)(c), you can file an ‘Application in a case’ in the Circuit Court seeking that the dismissal be set aside under r 17.05(2)(a).
2. While there is no prescribed timeframe for making an Application in a case under r 17.05(2) the application should be filed as soon as possible and within at least 28 days to avoid the expiry of any bridging visa granted to you on the basis of your judicial review application.
3. In deciding whether to set aside the dismissal, the Court will consider your explanation for non-appearance, your explanation for any delay in bringing an application to set aside the dismissal, and the merits of your dismissed judicial review application.
4. If the Circuit Court refuses to set aside the dismissal for non-appearance, you can seek leave to appeal to the Federal Court of Australia. Any application for leave to appeal to the Federal Court must be filed within 14 days after the Circuit Court’s decision.
5. You should obtain legal advice regarding any dismissal for non-appearance. You can book a free, 20-minute judicial review consultation with our firm here.