At times we are approached by clients in immigration matters seeking a reinstatement of their application after it was dismissed due to their non-attendance at a court date. Rule 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 provides that the Court may vary or set aside a judgment or order after it has been entered if it was made in the absence of a party. Reinstating an application is a ‘discretionary power’, requiring consideration of ‘whether or not it is in the interest of justice to reinstate the application’ (please see AYF15 v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFam C2G10). MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 identified the following three factors when exercising its discretion: (1) whether there is a reasonable excuse for the party’s absence; (2) the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and (3) whether the application for reinstatement has a reasonable prospects of success in the substantive proceeding, with the grounds to be taken at an impressionistic level.
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