Ohakwume v Minister for Home Affairs

In Ohakwume v Minister for Home Affairs, Judge A Kelly considered an application for the reinstatement of a dismissed judicial review proceeding. The applicant sought to have his application for judicial review of a decision affirmed by the Administrative Appeals Tribunal reinstated, and to set aside orders for costs made against him. The dismissal had occurred due to the applicant's non-attendance at the scheduled hearing on 6 December 2017.

The central legal issue before the Court was the threshold required for an applicant to demonstrate in support of an application for reinstatement of a proceeding. Specifically, the Court had to determine the level of satisfaction required regarding the merits of the underlying judicial review application when considering whether to exercise its discretion to reinstate.

The Court reasoned that the exercise of discretion in favour of reinstatement does not necessitate the Court being satisfied of the grounds of review to the same standard as applies at a final hearing. Instead, the applicable threshold is whether the grounds for judicial review are shown to be "arguable." This means the grounds must possess a level of rationality and a basis in the material before the Court, such that it is appropriate to hear full argument, allowing parties a fair opportunity to prepare. The Court emphasised that at this stage, grounds need not be fully developed, particularly for unrepresented applicants whose first language is not English. The decision to reinstate is a broad, discretionary one, guided by the principles established in *House v The King*. The applicant's stated reasons for non-attendance, including a flooded room destroying his documents and thus his record of the hearing date, along with his belief in the reasonable prospects of success of his application, were considered in this evaluative, discretionary assessment.