Da Silva and Secretary, Department of Education

The Administrative Appeals Tribunal (AAT) considered an application by Ms. Da Silva for the reinstatement of her application to review a University decision refusing to re-credit her HECS-HELP balance. The substantive application had been dismissed on 28 March 2022 for Ms. Da Silva's failure to appear at a hearing. Ms. Da Silva subsequently filed an application for reinstatement on 24 April 2022, which had been before the Tribunal for over 12 months and had been listed for hearing on three occasions.

The legal issues before the Tribunal were whether the substantive application had been dismissed in error, whether there was a satisfactory explanation for Ms. Da Silva's failure to appear, and whether it was appropriate in the circumstances to reinstate the application, considering the merits of the substantive application and any prejudice to the parties. The Tribunal was required to determine if the power to reinstate under s 42A(9) of the AAT Act was enlivened.

The Tribunal found that there was no evidence the application was dismissed in error. Ms. Da Silva had not provided an adequate explanation for her initial non-appearance on 28 March 2022, failing to provide probative evidence for her asserted household and spousal hospitalisation issues, nor explaining why she could not have contacted the Tribunal. Furthermore, repeated requests for adjournments of the reinstatement application hearing, supported by medical certificates that did not sufficiently detail the unfitness to attend or the reasons for it, demonstrated a pattern of failing to prosecute the application within a reasonable time. The Tribunal noted that such medical certificates, particularly when the applicant has been advised of the requirements, fall short of what is reasonably expected, referencing the principles established in cases like *Zubair*. The Tribunal concluded that the Applicant had ample opportunity to prosecute her case and that the considerations of explanation for failure to appear, merits of the substantive application, and prejudice did not favour reinstatement.

Accordingly, the Tribunal refused Ms. Da Silva's application for the reinstatement of her review application.