BHY16 v Minister for Immigration

This matter concerned an application for reinstatement of a judicial review proceeding before Judge A Kelly of the Federal Circuit Court of Australia. The applicant sought to reinstate their application for judicial review, which had been previously discontinued due to repeated non-appearance. The Minister for Immigration was the respondent.

The central legal issue before the Court was whether to exercise its discretion to reinstate the discontinued application. This required the Court to consider the threshold for demonstrating an "arguable" ground of review, as opposed to the level of satisfaction required at a final hearing. The Court also had to determine if the applicants had provided a satisfactory explanation for their repeated non-appearance and whether the filing of a notice of discontinuance presented a further impediment to reinstatement.

In reaching its decision, the Court applied the principles established in cases such as *CAL15* and *MZABP v Minister for Immigration and Border Protection*, which hold that for reinstatement, grounds of review need only be shown to be "arguable" – meaning not fanciful, illogical, or devoid of merit, but possessing a level of rationality and basis in the material. The Court found that the applicants had not demonstrated an arguable basis for their non-appearance, particularly given the multiple prior listings for hearing. Furthermore, the grounds of review were considered too generalised and unsupported by particulars to demonstrate jurisdictional error. The Court also noted that the filing of a notice of discontinuance acted as a bar to reinstatement.

The Court ultimately dismissed the application for reinstatement, finding that the applicants had failed to demonstrate an arguable case on judicial review and had not provided a satisfactory explanation for their repeated non-appearance.