DTW16 & Ors v Minister for Immigration & Anor (No.2)

In *DTW16 & Ors v Minister for Immigration & Anor (No.2)*, Dowdy J of the Federal Circuit Court of Australia considered an application by the first applicant seeking to reinstate an earlier application. This earlier application had sought the reinstatement of a substantive judicial review application, which had been dismissed for non-appearance at a final hearing concerning a decision by the Administrative Appeals Tribunal to refuse the applicants protection visas. The applicants had initially agreed to the dismissal of their substantive application and subsequently sought to withdraw their first application for reinstatement.

The primary legal issue before the Court was whether the applicants had established fraud sufficient to warrant the reinstatement of their dismissed application for judicial relief. The applicants' claim of fraud was based on allegations that they were advised by one Mr Eddy Kang not to attend the final hearing and later instructed to seek reinstatement of their substantive application. Further, they claimed to have received advice from a solicitor, Ms Elena Su, on the morning of the hearing for the first reinstatement application, suggesting withdrawal due to a small prospect of success.

Dowdy J reasoned that the applicants had failed to properly plead or establish fraud. The Court noted that the initial dismissal of the substantive application was effectively a consent order, disposing of the issues raised. The subsequent application for reinstatement, which was withdrawn by the applicants, was also dismissed at their request. The Court found that the allegations of fraud, as presented in the supporting affidavit, did not meet the required standard for establishing fraud, nor did they demonstrate that the proceedings had been affected by fraud leading to a miscarriage of justice. Consequently, the application for reinstatement was dismissed.