Aat17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 513
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 513
File number(s): SYG 16 of 2017 Judgment of: JUDGE OBRADOVIC Date of judgment: 1 July 2022 Catchwords: MIGRATION – Reinstatement – application to reinstate – where the application was dismissed at final hearing for non-attendance – where the applicant did not attend the final hearing – no reasonable excuse for non-attendance – no arguable prospects of success – reinstatement refused. Legislation: Migration Act1958 (Cth) s.5J
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr.6.01, 13.06
Cases cited: Abebe v Commonwealth [1999] HCA 14
Amin v Minister for Immigration and Multicultural Affairs [2000] FCA 1811
Koppalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17
Minister for Immigration and Multicultural AffairsvRespondents S152/2003 [2004] HCA 18
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 31 May 2022 Place: Parramatta Appearing for the Applicant: In person with the assistance of an interpreter Solicitors for the First Respondent: Minter Ellison ORDERS
SYG 16 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAT17
Applicant
AND:
AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
1 JULY 2022
THE COURT ORDERS THAT:
1.The application in a proceeding filed 1 April 2022 is dismissed.
2.Amend the first respondent’s name to Minister for Immigration, Citizenship, and Multicultural Affairs.
3.The applicant pay the first respondent’s costs fixed in the amount of $3,900.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
On 1 April 2022 the applicant filed an application in a proceeding seeking reinstatement of his judicial review application filed on 4 January 2017.
The original application for judicial review was dismissed on 3 February 2022, pursuant to Rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, after the applicant failed to appear at the final hearing.
The applicant was also ordered to pay the respondent’s costs in the amount of $5,600.
The first respondent opposes the application for reinstatement.
Background and Protection Claims
The applicant is a citizen of Bangladesh and arrived in Australia on 18 November 2006.
At the time of his arrival the applicant held a Student visa (subclass 573 visa).
The applicant applied for a protection visa on 13 March 2015.
The applicant made a number of claims in his application for a protection visa, which may be summarised as follows:
(a)The applicant’s father and wider family are politically active in Bangladesh;
(b)The applicant had been threatened, attacked, beaten, and shot at on multiple occasions, due to his political views and his, and his family’s, political involvement;
(c)The applicant’s father is a prominent political figure who served as a high ranked army official, who also served and participated in direct military action against the Pakistani Military. Since 2014 the applicant’s father has been a significant member of a well-known political party (“Party X”). The applicant's father has also been previously involved with other significant political parties in different capacities.
(d)The applicant was politically active, supporting his father, attending political meetings, events, and demonstrations. He is a member of and worked for Party X, providing ongoing advice on policies and party objectives. The applicant also says that he was a member of and activist with two other political parties which will be referred to as “Party Y” and “Party Z”;
(e)The applicant’s family members, including his cousins, have been “burnt to death” and “poisoned”;
(f)Members of the Party X have experienced physical harm, have been politically persecuted, and arrested;
(g)The applicant feared that a particular named battalion would arrest or kill the applicant if he returned to Bangladesh;
(h)The applicant had received death threats on multiple occasions, including through phone calls;
(i)The applicant fears harm if he returns to Bangladesh as a result of his and his family’s political ties and activism. Moreover, he fears he will be open to extortion as he will be perceived to have money, and wealth, as he has been living in a western country for many years. He also fears harm as he borrowed a substantial amount of money from his family trust to fund his immigration to Australia.
On 6 November 2015 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“delegate”) refused the applicant’s application for a protection visa.
The applicant applied for review of the delegate’s decision to the Administrative Appeals tribunal (“tribunal”) on 2 December 2015.
The applicant appeared before the tribunal via video link on 11 November 2016 and 6 December 2016 to provide evidence and submissions regarding his protection claims.
On 6 December 2016 the tribunal upheld the decision of the delegate.
On 4 January 2017 the applicant filed an application for judicial review of the tribunal decision. The application for judicial review was first listed for hearing on 22 July 2021.
The date of the hearing of the judicial review application was changed a number of times by the Court due to COVID-19 restrictions in place at the time, and the Court’s capacity to conduct an in-person hearing.
The applicant has been self-represented throughout the proceedings.
On 26 October 2021, the Court made orders in chambers listing the matter for hearing at 10.15am on 3 February 2022. As noted earlier, the applicant failed to appear at the hearing on 3 February 2022, and the matter was consequently dismissed.
Relevant Legal Principles
The principles in relation to reinstatement applications are well known and may be summarised[1] as follows:
(a)Firstly, the Court needs to consider whether there is a reasonable excuse for a party’s absence from the hearing in which the proceedings were struck out or dismissed.
(b)Secondly, the Court needs to consider the existence and nature of any prejudice which might flow to the respondent if reinstatement is granted and how that prejudice may be ameliorated.
(c)And, lastly, the Court is to consider whether the applicant has a reasonably arguable prospect of success on the substantive application. That substantive application, of course, before this Court is the judicial review application of the tribunal’s decision.
[1] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]
In exercising its discretion, the Court is required to consider the relevant factors and determine, whether on balance, they tend for or against reinstatement.
The Basis for Reinstatement
The applicant puts forward a number of reasons as to why he was unable to attend, and/or unaware of, the proceedings, being:
(a)That the Commonwealth Court Portal contained “misinformation” about the “case date”;[2]
(b)An email from the Court was sent to him a week prior to the hearing date to “my email address which I were checking randomly”;[3]
(c)A first email was received by the applicant eight months prior to the hearing;
(d)The case was ongoing for more than four years;
(e)The applicant also raises that there was no pre-hearing or interim hearing conducted (apart from Court directions); and
(f)That, even if he knew the date of the hearing he was unable to attend as he had only one dose of a COVID-19 vaccination.
[2] Affidavit of Applicant filed on 1 April 2022 at [1]
[3] Affidavit of Applicant filed on 1 April 2022 at [1]
The applicant goes on to assert that documents which supported his original application for judicial review were “overlooked” and not taken into consideration by this Court in its dismissal of his application.[4]
[4] Affidavit of Applicant filed on 1 April 2022 at [3]
He further states that there is additional information which has not been taken into account by the tribunal, including the assertion that the applicant’s cousin was “burn to death”.[5]
[5] Affidavit of Applicant filed on 1 April 2022 at [4]
The first respondent submits that the reasons provided by applicant to explain his non-attendance at the final hearing are wholly insufficient and that there was no reasonable excuse for the applicant’s absence. The first respondent further submits that no jurisdictional error was made by the tribunal in its decision dated 6 December 2016.
DETERMINATION
Explanation of Delay
As noted earlier, there were a number of changes to the hearing date of the application for judicial review. On 26 October 2021, the Court made orders listing the matter for hearing on 3 February 2022. The applicant submits that the information available on the Commonwealth Courts Portal led him to believe that the hearing listed for 3 February 2022 had been vacated.
The Commonwealth Courts Portal “is an initiative of the Federal Circuit and Family Court of Australia and Federal Court of Australia. It provides web-based services for clients to access information about cases before the courts.”[6]
[6] >
Apart from the applicant’s assertion, there is no other evidence that the information available on the Commonwealth Courts Portal was any different to the orders made on 26 October 2021, which were published by the Court listing the matter for hearing.
The applicant was notified by both the Court and the solicitors for the first respondent via email of the orders listing the matter for hearing, namely:
(a)On 26 October 2021, the Court sent an email to the applicant at [email protected] advising him of the date and time of the hearing;
(b)On 27 October 2021, the solicitors for the first respondent sent an email to the applicant with a letter informing him of the date, time and place of hearing. The letter was sent via email to [email protected], and via post.
(c)On 27 January 2022, the Court sent a further email to the applicant noting the date and time of hearing. The email address used was [email protected]; and
(d)On 1 February 2022, the solicitors for the first respondent sent an email to the applicant with a letter informing him of the date, time and place of the hearing. The letter was sent via email to [email protected] and via post.
The applicant acknowledged[7] that the email addresses used by the Court and the first respondent’s solicitors were his and that he received the emails notifying him of the hearing date.
[7] During the hearing of the re-instatement application on 31 May 2022
Rule 6.01(6) Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (“Rules”) provides that if a party is not represented by a lawyer, the party agrees to receive documents at the party’s email address.
The application and affidavit filed on 4 January 2017 provide the applicant’s address for service, including his email as [email protected]. The affidavit filed by the applicant on 16 August 2018 provides the email address [email protected]. The applicant did not at any point in time file a Notice of Address for Service advising of any changes to his address for service (including his email address).
The Court is not satisfied, in the absence of evidence other than a mere assertion by the applicant, that there was any contrary information published on the Commonwealth Courts Portal in respect of the hearing on 3 February 2022.
The Court is satisfied that the applicant was properly notified of the date, time and place of hearing and that he was aware of such information prior to 3 February 2022.
In respect of the other matter raised by the applicant, namely that there was no pre-hearing or interim hearing, this is not a relevant matter. The matter had been case managed in the usual way and is no explanation for the applicant’s non-appearance at the hearing.
Lastly, it is the applicant’s contention that he would not have been able to attend the hearing in any event as he had not received two doses of the COVID-19 vaccination. In this regard however, there is no suggestion by the applicant that he attempted to contact the Court to request that the matter either be adjourned or that it proceed to an electronic hearing, and is no explanation for the applicant’s non-appearance at the hearing.
In the circumstances, the Court is not satisfied that the applicant has provided any reasonable explanation for his failure to appear at the hearing on 3 February 2022.
Prejudice
It is acknowledged on behalf of the first respondent that there would not be significant prejudice if the application for reinstatement was granted. However, the absence of prejudice itself does not mean that the application should be reinstated.
Are there reasonably arguable prospects of success of the Judicial Review Application?
Administrative Appeals Tribunal Decision
The applicant had two hearings before the tribunal, which were both conducted by video-link, on 11 November 2016 and 6 December 2016. The applicant was self-represented at these hearings.
The tribunal assessed the applicant’s claims and made findings, which may be summarised as follows:
(a)The tribunal accepted that the applicant arrived in Australia in November 2006 and held a student visa. The tribunal also found that the applicant had lodged applications for a temporary graduate visa, which was accepted, and a spouse visa, which was rejected.
(b)The tribunal found that Party X was founded in June 2014 and currently exists and that the applicant’s father was a prominent member of the organisation. It also found that the membership of Party X numbered in the hundreds.
(c)The tribunal did not accept that Party X was a large political force or that it had “anything beyond a peripheral presence on the Bangladeshi political scene”.
(d)Additionally, the tribunal did not accept that members of Party X had experienced harm as a result of their membership.
(e)The tribunal did not accept that the applicant was, or had acted as, the legal advisor to Party X.
(f)The tribunal accepted that the applicant would want to join Party X on his return to Bangladesh, however did not accept that the applicant would suffer hardship as a result of his membership, and any risk of harm was deemed to be remote.
(g)The tribunal did not accept that Party Z exists. As the tribunal did not accept that Party Z existed, it therefore did not accept that the applicant or his father were members or supporters of Party Z.
(h)The tribunal did not accept that the applicant was a member of or supporter of Party Y, and as such did “not accept that the applicant (as distinct from his father) has any history of political activity in Bangladesh”.
(i)The tribunal determined that when the applicant referred to a subsequent political party, which will be referred to as “Party A”, he was referring to a branch of the party which will be referred to as “Party A-B”. Subsequently, the tribunal accepted that Party A-B existed and that the applicant’s father was formerly a member. However, the tribunal did not find that applicant’s father’s former membership would lead to harm being perpetrated against the applicant.
(j)The tribunal did not accept that applicant’s claims about past harm occurring in Bangladesh, prior to his departure in 2006, nor did the tribunal accept that the applicant had received any death threats. This was partly attributed to the lengthy delay between him arriving in Australia in November 2006 and him lodging a protection visa some eight years after his arrival. The tribunal reasoned that as it did not accept the claims of past harm, and that there was a remote chance of future harm to the applicant.
(k)The tribunal did not accept that the applicant’s cousin was burnt to death.
(l)The tribunal did not accept that the applicant would be harshly mistreated for having spent a large amount of funds from his family trust whilst residing in Australia. Additionally, it also held that there was a remote chance of him being extorted due to any perception of wealth due to the applicant residing in Australia for a number of years.
(m)The tribunal found that the applicant’s claim, that the named battalion would arrest or kill the applicant if he returned to Bangladesh was remote.
The tribunal ultimately concluded that the applicant did not have a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) Migration Act 1958 (Cth) (“Act”). The tribunal also found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, that there was a real chance the applicant would suffer significant harm.
The Grounds of Judicial Review
The applicant’s application for judicial review filed on 4 January 2017 relies on 7 grounds, which are particularised as follows:[8]
[8] The Court relied upon the summary provided in the first respondent’s outline of submission filed 27 January 2022
(a)Natural Justice:
(i)The statement by the tribunal that the hearing was conducted with the assistance of an interpreter in the Bengali and English languages was not only incorrect because no interpreter attended, but was also fraudulent or misleading or extremely ignorant;
(ii)The tribunal did not understand what the applicant said at the hearing although the tribunal member acted as if he understood what the applicant had said; and
(iii)The tribunal had predetermined that it would reject the application and was biased.
(b)Bad faith:
(i)The tribunal misled the applicant about the timeframe in which it would reach its decision, thus preventing him from providing further evidence;
(ii)The tribunal hurried its decision to prevent the applicant from providing more evidence;
(iii)The tribunal did not inform the applicant of, or give him a chance to reply to, its adverse decision;
(iv)The tribunal was illogical in rejecting the application and it was unreasonable to find that he had never experienced harm in Bangladesh; and
(v)Nobody with common sense could have reached this decision unless biased or under pressure.
(c)Reached decision without considering all the evidence or asking any questions about decisive matters:
(i)The tribunal made its finding that the applicant was not a supporter of Party Y without looking into the evidence, facts, logic or even asking a single question;
(ii)The tribunal failed to ask any questions or address the risk associated with the applicant's idealism;
(iii)The tribunal failed to take into account the reason for his 10 year stay in Australia, being to stay away from the risk he faces in Bangladesh
(iv)The tribunal's finding that Party X and Party Z letters were bogus was erroneous, and both authors were prepared to testify about their genuineness;
(v)The tribunal did not tell the applicant that it considered the letters to be bogus;
(vi)Both letters, and the letter from the Ambassador for Peace, contained contact mobile numbers; and
(vii)The tribunal erred by overlooking the Ambassador for Peace letter.
(d)Inflexible policy:
(i)There have been no successful applications for a protection visa by Bangladeshi persons on political grounds since 2012, which reflects an inflexible policy; and
(ii)The tribunal did not understand what the applicant has said and did not properly consider his evidence or ask any questions.
(e)Improper exercise of power:
(i)The tribunal tried to make up a new provision or ruling in relation to finding that the applicant did not suffer any of the claimed instances of past harm because of his delay in lodging a protection visa application.
(f)Error to apply law:
(i)The tribunal erred in judging the situation in Bangladesh on the basis of a DFAT report; and
(ii)The tribunal did not rely on reports that he provided to it.
(g)Improper purpose:
(i)The tribunal rejected not only the applicant’s application but also the applications for all previous political asylum applicants in the past five years; and
(ii)The tribunal is in collaboration with the Bangladeshi authorities.
In addition, the applicant in his affidavit in support of the application for re-instatement, attached a two page statement where he made further contentions, in addition to taking issue with the second respondent’s submissions, being: [9]
(a)documents supporting the 'main point' of the case were overlooked including that the applicant is a party member and an individual for the interests of the oppressed or mistreated in the community;
(b)there were many witnesses to the applicant's cousin's death and a post-mortem was denied for religious reasons by relatives. The tribunal could have asked about the witnesses and there was also another relevant death incident;
(c)the decision contained a factual error which was not typographical and the tribunal gave the impression that it was going to deliver its decision within a week or two but delivered it in less than three hours' time;
(d)the tribunal decision admitted that there were many different chances of harm and every single one was remote, and the presence of remote chances of harm could not keep it a remote possibility; and
(e)there were notable errors in fact finding and errors in reasonable discretion for the interests of fair judgment.
[9] First Respondent’s Written Outline of Submission filed 19 May 2022 at [24]
Does the applicant have a reasonably arguable case for judicial review?
In respect of ground 1, it is correct that the applicant did not have the assistance of an interpreter at either of the two hearings which were conducted before the tribunal. The statement in the decision that an interpreter was present, is clearly erroneous. However, on a reading of the reasons as a whole, it is not apparent that the tribunal did not understand what the applicant was saying and claiming, nor that its decision was in any way fraudulent or misleading. The error does not go to a failure by the tribunal to discharge its review function.
The applicant was heard by the tribunal and given the opportunity of presenting his claim and his arguments. The transcript of the hearing, does not demonstrate any misunderstanding of the applicant’s claims or evidence or that he was denied a meaningful opportunity of participating at the two hearings.
On the material, there is no basis for finding that the tribunal had predetermined the issues before it or that it was biased. No inference of bias or prejudgment should be drawn from the mere fact of adverse findings.[10]
[10] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17
In respect of ground 2, the fact that the tribunal made its decision on the same day as the hearing does not of itself mean that there was insufficient or improper consideration of the matter, or that the decision was affected by bias.[11] In any event, the tribunal held two hearings, rather than one.
[11] Amin v Minister for Immigration and Multicultural Affairs [2000] FCA 1811 at [3]-[5] per Tamberlin J
A fair reading of the transcript does not support the contention that the tribunal misled the applicant about the timeframe as he claims. The transcript does not reveal any request by the applicant for further time to provide further evidence or that he anticipated that he would do so.
Furthermore, the tribunal is under no obligation to pre-warn an applicant that it is about to make an adverse decision, to reveal its thought process to the applicant or to give advance notice of its reasons.[12]
[12] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]
Lastly, tribunal's conclusions about the applicant's claims of past and future harm were not conclusions at which no rational or logical decision-maker could have arrived at on the same evidence.[13] It appears that the applicant’s complaint is an expression of his disagreement with the tribunal’s conclusions.
[13] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]–[131] and [135]
In respect of ground 3, the tribunal found that the applicant was not a member of, or a supporter of, Party Y, a finding that was reasonably open to it on the evidence and for the reasons it gave. It was not illogical or unreasonable on its face. The tribunal considered the explanation provided by the applicant for making the claims, and was not satisfied that they were credible given the length of time it took the applicant to make the protection claim.
The particular correspondence from the Ambassador for Peace was expressly referred to by the tribunal in its reasons, but given no weight. The assessment of weight was reasonably open to the tribunal for the reasons it gave. Furthermore, the conclusions as to the bogus nature of the documents which the applicant relied upon were open to the tribunal for the reasons it gave. The suggestion by the applicant that the documents were not bogus because they were authored by his father, is a circular argument that does not take the matter any further.
While the tribunal could have made enquiries of the purported authors of the letters, however, the duty imposed upon the tribunal is a duty to review, not a duty to enquire. While acknowledging that in some circumstances, that a failure to make an obvious enquiry about a critical fact could supply a sufficient link to the outcome to constitute a failure to review[14], in the present circumstances such enquiry did not have a sufficient connection to the outcome of the review to give rise to such a duty.
[14] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]
In any event, “…the question whether the [letters]… contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the [letters]… contained false statements, then the grounds for a decision adverse to [the applicant] … would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the [letters]… themselves.”[15]
[15] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [26]
In respect of grounds 4 and 7, the complaints made appear to be without foundation or supporting evidence. The suggestion by the applicant that the tribunal did not understand his claims or not properly consider his evidence or ask questions, simply appears to be an expression of disagreement with the tribunal’s findings.
In respect of ground 5, it is well-established that a delay in seeking a protection visa can support adverse findings about credibility of claims, including that the fear is not well-founded.[16]
[16] Koppalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126
In respect of ground 6, the preference or choice of the tribunal for country information is a matter for it within its fact finding function.[17] Furthermore, the tribunal is bound to take into account relevant country information assessments prepared by DFAT to the extent that they are relevant.
[17] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]
In respect of the additional matters raised by the applicant in his application for re-instatement (using the same numbering as in [40] above):
(a)The applicant has not particularised which documents were overlooked and in any event the application was dismissed for default not summarily;
(b)The responsibility for making his case and deciding what evidence he relies upon in making his case, rests upon the applicant.[18] The applicant’s assertion does not support the contention that the tribunal failed to make an obvious enquiry about a critical fact.[19]
(c)This is a similar argument to the one addressed in respect of ground 2 above.
(d)While it appears that the tribunal did not make a cumulative assessment, the tribunal has no such obligation in circumstances where the individual claims have been rejected as a factual matter or have been the subject of findings that they did not give rise to a real or significant risk of harm upon return to the receiving country.[20] The applicant in his oral submissions also relied upon argument that “Where fear of persecution springs from the conduct of the State and there is a real chance that the conduct will continue and affect the asylum seeker, a finding that the fear is well-founded will be virtually inevitable.”[21] However, the applicant failed to point to any evidence going to the conduct of the receiving state or indeed the issue of the receiving state refusing to act or tolerating the conduct of the individual group, such that it is complicit.
(e)There is no particularisation of the alleged notable errors in fact and errors in reasonable discretion. The particularised assertions contained in the application for review have already been addressed as has the assertion as to a failure to provide procedural fairness.
[18] Abebe v Commonwealth [1999] HCA 14 at [187]
[19] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]
[20] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [32]-[34]
[21] Minister for Immigration and Multicultural AffairsvRespondents S152/2003 [2004] HCA 18 at [76]
Conclusion
The Court finds that the applicant has not provided a reasonable explanation for his absence from the hearing on 3 February 2022.
The mere absence of prejudice to the respondents is not a reason of itself to grant the reinstatement. The Court is concerned that there should be finality in this matter.
Lastly, the Court upon a consideration of the proposed grounds of judicial review, is not satisfied that the application has reasonably arguable prospects of success such as to warrant the Court exercising its discretion to reinstate the matter.
Accordingly, the application for reinstatement is dismissed with costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 1 July 2022
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