ABF24 v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 347
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ABF24 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 347
File number(s): CAG 2 of 2024 Judgment of: JUDGE LEISHMAN Date of judgment: 14 March 2025 Catchwords: MIGRATION – Protection (subclass 866) visa – Application for review of Registrar’s decision – Extension of time of four days required – Where Registrar dismissed the application for judicial review for non-appearance and then dismissed an application for reinstatement – Where the judicial review grounds have no reasonable prospects of success – Application for extension of time refused – Application for review of Registrar’s decision refused – Order for costs Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256(1)
Migration Act 1958 (Cth) ss 425, 425A, 426, 426A, 441A, 441G
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, rr 13.06, 17.05, 21.02
Migration Regulations 1994 (Cth) reg 4.35D
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579
BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023
Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
SZSDA v Minister for Immigration & Citizenship (2012) 135 ALD 17
Bechara v Bates (2021) 286 FCR 166; (2021) 388 ALR 414
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
Muzammil v Minister for Home Affairs [2019] FCCA 1564
Re Commonwealth of Australia and Another; Ex Parte Marks (2000) 177 ALR 491
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; (2006) 231 ALR 630
Akbar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 82
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181
Division: Division 2 General Federal Law Number of paragraphs: 90 Date of hearing: 11 March 2025 Place: Canberra Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Taylor of MinterEllison Solicitor for the Second Respondent: Submitting appearance ORDERS
CAG 2 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABF24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LEISHMAN
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The application pursuant to r 21.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), to extend the time within which an application for review of the exercise of a power by a Registrar must be made is refused.
2.The application for review of the exercise of a power by a Registrar filed on 21 February 2025 is dismissed.
3.The Applicant pay the First Respondent’s costs in the amount of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LEISHMAN
INTRODUCTION
On 21 February 2025, the Applicant applied to this Court for review of the exercise of a Judicial Registrar’s power, being a decision made by the Judicial Registrar to dismiss the Applicant’s application for reinstatement of a judicial review application.
PROCEDURAL BACKGROUND
On 7 February 2019, the Applicant travelled to Australia from China on a Visitor visa.
On 16 February 2019, the Applicant applied for a Protection (subclass 866) visa.
On 13 November 2020, the Department of Home Affairs (‘the Department’) sent a letter to the Applicant notifying him that the application for a Protection visa had been refused.
On 9 December 2020, the Applicant filed an application in the Administrative Appeals Tribunal (‘the Tribunal’), as it then was, for review of the Minister’s decision to refuse his Protection visa application (‘review application’).
On 30 November 2023, the Tribunal dismissed the Applicant’s review application due to his failure to attend the hearing of the application which took place on that date.
On 3 January 2024, the Applicant applied to this Court for judicial review of the decision of the Tribunal (‘the judicial review application’).
On 9 August 2024, a Callover hearing (‘the Callover hearing’) took place in respect of the judicial review application. The Applicant failed to attend the Callover hearing and the Judicial Registrar dismissed the judicial review application for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) (‘the Rules’).
On 18 December 2024, the Applicant filed an application in a proceeding seeking an order that the judicial review application be reinstated (‘the Reinstatement Application’).
On 7 February 2025, the Reinstatement Application was heard by a Judicial Registrar. On 10 February 2025, the Judicial Registrar dismissed the Reinstatement Application and ordered that the Applicant pay the First Respondent’s costs in the amount of $4,189.38. The Applicant was sent a copy of the sealed orders and reasons for judgment by email on that date.
It is this decision that the Applicant now requests this Court to review.
As the Application for Review of the Registrar’s decision was filed outside the seven-day time frame for filing, as provided by r 21.02(1) of the Rules, the Court also needs to determine whether an extension of time should be granted.
ISSUES
The issues to be determined are as follows:
(a)Whether an extension of time for the filing of the Application for Review filed on 21 February 2025 should be granted; and
(b)If an extension of time is granted, whether the judicial review application should be reinstated.
MATERIAL RELIED UPON
The Applicant relied upon the following:
(a)The Court Book which was tendered and marked as Exhibit C-1;
(b)The Application for Review filed on 21 February 2025;
(c)The Application in a Proceeding filed on 18 December 2024;
(d)The affidavit filed on 18 December 2024;
(e)The Application for Judicial Review filed on 3 January 2024; and
(f)The affidavit filed on 3 January 2024.
The First Respondent relied upon the following:
(a)The Court Book which was tendered and marked as Exhibit C-1;
(b)The Outline of Submissions filed on 5 March 2025;
(c)The affidavit of Lily Joelle Butterfield filed on 5 March 2025;
(d)The affidavit of Lily Joelle Butterfield filed on 31 January 2025; and
(e)The Submitting Notice filed on 12 January 2024.
Should an extension of time be granted for the filing of the Application for Review of the Registrar’s Decision?
On 21 February 2025, the Applicant made an application pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) for review of a Judicial Registrar’s decision delivered on 10 February 2025.
The time for filing an application of this nature is provided by r 21.02 of the Rules and is as follows:
21.02 Time for application for review
(1)For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2) The time prescribed by subrule (1) may be extended in a proceeding:
(a)by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b) with the consent of the parties to the proceeding.
The Application for Review was filed eleven days after the date of the Judicial Registrar’s decision. In accordance with r 21.02(1), it should have been filed within seven days, that is, by 17 February 2025.
The Court is empowered to extend the time for filing on any terms that it thinks fit or with the consent of the parties. The Applicant did not formally request an extension of time but at the hearing, when asked, said he wanted an extension of time. The Minister opposes any grant of an extension of time.
The principles regarding applications for extensions of time have been considered in a number of cases: see BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (‘BTI15’) and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 (‘Katoa’).
In BTI15, as per Jagot and Halley JJ, it was stated at [40] that the Court is required to:
… evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice.
See also Katoa at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
The following matters are relevant when considering whether to grant an extension of time:
(a)the extent of the delay and the explanation for it;
(b)any prejudice;
(c)the impact on the applicant if the time is not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application: see BTI15 at [25]–[26] per Logan J, and Katoa at [40] per Gordon, Edelman, and Steward JJ.
It was submitted on behalf of the Applicant that the reason for the delay in him filing the Application for Review was because he had asked a friend to help lodge it for him and that the friend had lodged the Application in the High Court of Australia and that he had paid a fee of $2,280.
The Applicant did not file an affidavit with his Application for Review and this information was given orally at the hearing.
The Applicant submitted that he should be granted an extension of time because he suffered unfair treatment at the previous Court hearing and suffered discrimination because he is Chinese. He also submitted that he has a right to fight for his visa and has been in Australia for six years and has not done anything illegal.
It was submitted on behalf of the First Respondent that the Court should refuse to grant an extension of time for the following reasons:
(a)No reasonable or adequate explanation has been provided for the delay in filing the application. There was no evidence to corroborate the claim that it had been mistakenly filed in the High Court which amounted to a bare assertion only;
(b)While the First Respondent would not face significant prejudice personally by the grant of an extension of time, the absence of prejudice does not, without more, suffice to justify the grant of an extension: see BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 at [18] per Beach J;
(c)There is a significant public interest in the timely and effective disposal of litigation particularly in public law where delays in dealing with applications for visas are to be avoided if possible: see Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9 at [62] per Gyles J; and
(d)The substantive application for judicial review has no reasonable prospects of success.
Consideration
Reason for delay
The Applicant did not seek leave to file any affidavit evidence in support of his assertion that the Application had been mistakenly filed in the High Court by a third party and gave no particulars about when and how the Application had purportedly been filed.
The Applicant is an unrepresented party however, it can be inferred he understands the importance of complying with timeframes and prosecuting his application as he has had both his review application and reinstatement application dismissed for non-appearance at the respective hearings of those applications. As such, I conclude that the Applicant would have had a reasonable understanding of the need to comply with the filing timeframe provided in r 21.02(1) of the Rules.
To the extent that the Applicant may have been unaware of the time limit attached to making a review application to the Court, an unrepresented litigant’s ignorance of the time limit for a review is not, without more, a satisfactory explanation for delay: see SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8] to [9]; SZSDA v Minister for Immigration & Citizenship (2012) 135 ALD 17 at [38].
I conclude that the Applicant has not given an arguable explanation for the delay in filing the Application for Review of the Judicial Registrar’s decision.
Prejudice
The First Respondent has acknowledged that it would not face significant prejudice if an extension of time was granted. In this regard, I note that the delay in filing was four days.
Impact on Applicant if extension not granted
The impact on the Applicant if time is not extended is that the dismissal of the review application by the Tribunal stands and he would no longer be eligible to remain in Australia. However, the Applicant himself has to bear some responsibility for the procedural history of this matter by his failure to attend two significant procedural events.
Interests of Public
There is a significant public interest in the timely and effective disposal of litigation, particularly in the area of migration law where delays in dealing with visa applications should be avoided if possible.
There have been significant delays in the finalisation of the Applicant’s visa status due to his own actions in failing to attend the hearing before the Tribunal and then failing to attend the Callover hearing to progress his judicial review application.
Merits of substantive application for judicial review
I must also consider the merits of the judicial review application in deciding whether to grant an extension of time.
The Applicant’s grounds for judicial review are set out at page 3 of the Initiating Application filed on 3 January 2024 and are as follows:
1.The AAT’s made a jurisdictional error.
2.AAT didn't review my original application based on the merits or give any reasons for why I can't meet the law requirements for protection visa.
3.The AAT can't just dismiss my application simply I couldn't attend the interview. I should be allowed another chance.
The review of an exercise of power by a Registrar must proceed by way of a hearing de novo. The review is not concerned with correcting error, nor is it a review de novo as a further stage in a tiered process.
The Registrar’s order takes effect as an order of the judges of the Court but on the basis that a judge may be asked to make an order in place of the exercise of delegated authority: see Bechara v Bates (2021) 286 FCR 166; (2021) 388 ALR 414 at [3] per Allsop CJ, Markovic and Colvin JJ.
Accordingly, the question for me to determine would be the same as was before the Judicial Registrar, which is whether to grant the application for reinstatement. The power to reinstate is found in r 17.05(2)(a) of the Rules due to the absence of the Applicant at the hearing before the Tribunal.
The relevant questions for the Court in determining whether to grant an application in a proceeding pursuant to r 17.05(2)(a) of the Rules are set out in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] per Ryan J and in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J. In the present circumstances, those questions include:
(a)Whether there was a reasonable excuse for the party’s absence from the hearing;
(b)The existence and nature of any prejudice which might flow to the other party from the reinstatement; and
(c)Whether the Applicant has a reasonably arguable prospect of success on the substantive application.
Was there a reasonable excuse for the Applicant’s non-attendance at the Callover hearing
The Applicant’s reason given for not attending the Callover hearing was due to alleged severe medical conditions. At paragraphs [2] and [3] of his affidavit in support of the Reinstatement Application he deposed:
[2] I missed the Callover hearing on 9 August 2024 due to my severe medical conditions.
[3] I wish the court can re-arrange the appointment and continue my application in court.
On this basis, he requested another Court date and to continue his judicial review application. A copy of the medical documents provided by the Applicant in support of this is at Court Book (‘CB’) 30-34.
The letter from the Applicant’s general practitioner, dated 16 December 2024 states that the Applicant: “was not well with severe respiratory symptoms last year from 03/2023 not responding to hay fever treatment” and that he was “seen by Dr Ting in 09/2023, had thorough tests, asthma was confirmed and treatment started since then”.
A letter from Dr Ting, respiratory specialist, dated 9 September 2023 states that the Applicant had uncontrolled asthma, as well as gastritis and duodenitis, and prescribed a treatment plan. Pulmonary function test results dated 8 September 2023 were provided with the letter.
The medical documents provided by the Applicant relate to medical concerns experienced by him between March 2023 and September 2023, following which he was treated for asthma. The Callover hearing was on 9 August 2024, a significant time after the Applicant’s medical concerns were being experienced.
The Applicant stated in the hearing before me that he did not attend the Callover hearing because he had a very serious cough and could not speak. When asked why he did not notify the Court of this, he said it was because he cannot speak English.
There is no corroborating evidence as to whether the Applicant was unwell or experiencing medical symptoms on the date of the Callover hearing. There is no evidence of how the Applicant’s health prevented him from attending the Callover hearing or participating in it, noting it was to occur by telephone.
It was submitted on behalf of the First Respondent that the Applicant was on notice of the Callover hearing and the consequences of his non-appearance. The First Respondent relied upon the following matters in support of this contention:
(a)On 1 August 2024, the Court notified the parties that the matter was set down for a Callover hearing by telephone on 9 August 2024 at 10.45 am AEST before a Judicial Registrar; and
(b)Also on 1 August 2024, the First Respondent’s legal representatives notified the Applicant by letter sent to the email address provided by the Applicant on the judicial review application which was filed by him, that the matter was listed for a Callover hearing by telephone on 9 August 2024 at 10.45 am AEST and that, if he did not appear on that occasion, the First Respondent may apply for the matter to be dismissed for non-appearance under r 13.06(1)(c) of the Rules.
Evidence of these matters is contained in the affidavit of Lily Joelle Butterfield affirmed on 31 January 2025 at [6] and annexure LJB01 of that affidavit.
Notwithstanding having received notice of the Callover hearing and the correspondence from the First Respondent’s legal representatives, the Applicant did not appear at the Callover hearing. The Applicant did not seek an adjournment or inform the Court or the First Respondent’s legal representatives that he was unable to attend.
At the hearing before me, the Applicant was asked why he had taken four months to file the Reinstatement Application. The Applicant asserted that he had not received notification from the Court that the judicial review application had been dismissed. He asserted that he first became aware of this when officers from the Department of Home Affairs came to his house and told him his visa had been cancelled. The Court file shows the Order dismissing the judicial review application was sent to the Applicant by email on the date it was made.
The Applicant did not raise these matters at the hearing of the Reinstatement Application before the Judicial Registrar on 7 February 2025, nor did he file any evidence to corroborate these claims.
As such, I conclude that the Applicant has not provided a reasonable excuse for his non-attendance at the Callover hearing.
Prejudice
The First Respondent has acknowledged that it would not face significant prejudice if the judicial review application was to be reinstated other than in respect of costs.
However, the absence of prejudice alone does not mean the application should be reinstated: Muzammil v Minister for Home Affairs [2019] FCCA 1564 at [46] per Kelly J.
There is also significant public interest in the timely and effective disposal of litigation in respect of administrative matters and in decisions being finalised: Re Commonwealth of Australia and Another; Ex Parte Marks (2000) 177 ALR 491 at [15] to [17] per McHugh J.
Does the Applicant have a reasonably arguable prospect of success on the substantive application?
In considering the Reinstatement Application, I need to consider the Applicant’s prospects of success on the judicial review application.
The question before the Court is whether any of the grounds are arguable, reasonably arguable, sufficiently arguable, or have reasonable prospects of success. Whether or not to accede to a reinstatement application is a discretionary power. The Court must consider whether or not it is in the interests of justice to reinstate the application: see FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50].
As already mentioned, the Applicant’s grounds set out in the judicial review application are as follows:
1.The AAT's made a jurisdictional error.
2.AAT didn't review my original application based on the merits or give any reasons for why I can't meet the law requirements for protection visa.
3.The AAT can't just dismiss my application simply I couldn't attend the interview. I should be allowed another chance.
The Applicant makes an assertion in ground one that “[t]he AAT's made a jurisdictional error”. The First Respondent submitted that this ground was insufficiently particularised.
In determining this ground, it is necessary to have regard to the Tribunal’s decision which lead to the dismissal of the review application.
The Tribunal’s Decision
A number of sections of the Migration Act 1958 (Cth) (‘the Act’) referred to below were in force at the time of the review hearing but have since been repealed.
Section 426A(1A)(b) was in force at the time of the review hearing and is set out below:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
Thus, where an applicant is invited under s 425 of the Act to appear before the Tribunal and the applicant does not appear, the Tribunal may by written statement dismiss the application without any further consideration of the application or information before the Tribunal.
I must therefore consider whether the invitation to attend the hearing was a valid invitation under s 425 of the Act. The hearing invitation is contained in CB 175-183.
It was submitted on behalf of the First Respondent that the hearing invitation complied with s 425 of the Act for the following reasons:
(a)It notified the Applicant that he could give written notice to obtain oral evidence from a person or persons as required by ss 426(1)(b) and 426(2) of the Act;
(b)It notified the Applicant of the specified day, time and place of the hearing as required by s 425A(1) of the Act;
(c)It was given to the Applicant by transmission to the last email address provided to the Tribunal by his representative in connection with the review, being an approved method for giving a document under s 441A(5)(d), as required by s 425A(2)(a) of the Act;
(d)It complied with s 425A(3) of the Act by providing at least the notice period prescribed in reg 4.35D of the Migration Regulations 1994 (Cth) (fourteen days); and
(e)It complied with s 425A(4) of the Act by containing a statement to the effect of s 426A about the options available to the Tribunal if the Applicant failed to appear.
It is further submitted on behalf of the First Respondent that once the Applicant had been validly invited to attend the hearing there was no further obligation to take any further steps to notify the Applicant of the hearing: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; (2006) 231 ALR 630 at [39] per Spender, French and Cowdroy JJ.
In this regard, I note there has been no suggestion from the Applicant that he did not know the hearing was on. The Applicant has given evidence that he did not attend the hearing in the Tribunal because he was unwell. On 9 November 2023, the Applicant's migration agent advised the Tribunal by way of email correspondence that the Applicant would not attend the hearing scheduled for 30 November 2023 (CB 187).
On 20 November 2023, the Tribunal contacted the Applicant by telephone with an interpreter present, to ascertain if the Applicant intended on being present at the hearing. The Applicant told the Tribunal that he was not going to attend the hearing but gave no reason as to why he would not attend.
Further, the Tribunal sent two SMS messages to the Applicant on 23 and 29 November 2023 to remind him of the hearing date.
A decision by an applicant not to attend a hearing is not the same as consent to the Tribunal deciding the review without him appearing before it. As a result, the Tribunal kept the hearing listed because the Applicant himself had not formally notified the Tribunal in writing that he would not attend.
It was submitted on behalf of the First Respondent that where there is no evidence of unambiguous and positive consent for the matter to be determined on the papers, the Tribunal was entitled to proceed as it did, to dismiss the review application without any further consideration as to the merits.
In the absence of such consent, the First Respondent submits that ss 425(2)(b) and (3) of the Act would not apply to preclude the applicant from an entitlement to appear before the Tribunal: See Akbar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 82 at [58] per Kendall J.
Was the decision to dismiss the Application reasonable?
The Applicant submitted that he had not done anything illegal and that it was unfair that his review application was dismissed by the Tribunal. He also submitted that his migration agent had submitted incorrect information.
The First Respondent submitted that the Tribunal’s decision to dismiss the review application fell within the range of possible and acceptable outcomes that are defensible in respect of the facts and law, having regard to the following factors (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [69] to [70] per Gageler J):
(a)The Tribunal validly invited the Applicant to the hearing and, accordingly, it should be inferred that the applicant was on notice of the hearing and the consequences of non-attendance;
(b)There was nothing to indicate that the Applicant no longer wished to engage his migration agent as his representative after her registration as a migration agent ceased; and
(c)The Tribunal spoke to the Applicant by telephone on 20 November 2023 and sent two separate SMS reminders to the Applicant's nominated contact number prior to the hearing on 23 November 2023 and 29 November 2023.
Accordingly, the First Respondent takes the position that the Tribunal's dismissal of the application was not unreasonable in a legal sense, and did not lack any evident and intelligible justification.
Consideration
The issues raised by the Applicant’s three grounds of review are that the Tribunal fell into jurisdictional error arising from the decision by the Tribunal not to review the merits of the Applicant’s visa application or provide reasons and by dismissing the application simply because the Applicant did not attend the hearing.
It is clear that the Tribunal understood the Applicant had not provided clear consent to the Tribunal deciding the review without him being in attendance. As such, it invoked its power pursuant to s 426A(1A)(b) of the Act to dismiss the review application without further consideration of the application or information being put before it.
In circumstances where the Applicant had been notified by email, SMS message and telephone of the hearing date and the consequences of non-appearance, it was reasonable and justifiable for it to dismiss the review application without further consideration or information being put before it: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181 at [76] per Hayne, Kiefel and Bell JJ. In those circumstances, the Tribunal was not required to provide reasons for its decision to dismiss the review application.
I find there was no jurisdictional error in the Tribunal dismissing the review application in the manner it did.
The dismissal of the application under s 426A(1A)(b) provided the Applicant with the ability to apply within fourteen days of the Tribunal’s decision to have the application reinstated. This gave him a further opportunity to recover his review application by informing the Tribunal of his reasons for non-appearance at the hearing, and by potentially amending his grounds of review and providing more fulsome information to the Tribunal.
The Tribunal correctly notified the Applicant of its decision by email to the last email provided to the Tribunal in connection with the review application: s 441A(5)(d) of the Act. The Tribunal was obliged to send any document it would have otherwise given to the Applicant to the Applicant’s authorised recipient, irrespective of the status of her registration as a migration agent: s 441G(1) of the Act. It was the obligation of the Applicant to advise the Tribunal if he wished to cancel the authorised representative's authority under s 441G(2) of the Act once she was no longer a registered agent.
I am satisfied that the Tribunal did all it could to ensure the Applicant participated in the hearing and had the opportunity to be heard prior to confirming its decision. I conclude that it was correct for the Tribunal to confirm the dismissal decision at the end of the fourteen-day period in the absence of any Reinstatement Application by the Applicant, and that no error arises from the Tribunal’s decision to do so.
CONCLUSION
In terms of the question of whether the Application for judicial review has any merit, such that an extension of time should be granted and the Reinstatement Application heard, having considered all the factors above, I find that the Application for judicial review lacks reasonably arguable prospects of success.
Accordingly, I conclude that it is not in the interests of justice to set aside the Judicial Registrar’s Orders of 10 February 2025, and weighs against the grant of an extension of time.
The application to extend the time within which an application for review of the exercise of a power by a Registrar must be made is therefore refused and I dismiss the application for review of the exercise of a power by a Registrar.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs.
The legal representative for the First Respondent sought costs in accordance with the costs scale in Schedule 2, Part 2 of the Rules in the amount of $4,189.39. The Applicant did not make any submissions as to costs although was invited to do so.
I am satisfied the Applicant should pay the First Respondent’s costs in this amount and I will make an order in those terms accordingly.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Leishman. Dated: 14 March 2025
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