Javed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

This matter concerned an application by the first applicant to reinstate proceedings that had been struck out by the Federal Court. The dispute arose from the first applicant's failure to attend a hearing, which led to the matter being dismissed. The first applicant sought reinstatement on the grounds of illness, specifically anxiety and mood swings, which he contended prevented him from representing himself.

The court was required to determine whether to grant the application for reinstatement. This involved considering three discretionary factors: whether there was a reasonable excuse for the applicants' absence when the proceedings were struck out; the prejudice to the respondent and whether it could be assuaged; and whether the applicant had a reasonably arguable prospect of success in the substantive application.

Humphreys J applied the principles set out in *MZYEZ v Minister for Immigration and Citizenship* [2010] FCA 530. The court found that the first applicant had not provided a reasonable excuse for his absence. Despite being aware that his failure to attend could lead to dismissal and having been previously adjourned, the medical certificate provided by Dr. Zhao did not state that the first applicant was unfit to attend court, either in person or by telephone. Furthermore, the medical evidence was not provided in affidavit form as required by court orders. The court also noted that the application would be futile even if reinstated, as it lacked a reasonably arguable prospect of success.

Consequently, the application for reinstatement was dismissed. The court concluded that the reasons for the applicant's non-attendance, coupled with the prejudice suffered by the respondent in terms of finalising matters, outweighed other discretionary considerations for reinstatement.