BWK24 v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1129
•9 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BWK24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1129
File number(s): MLG 901 of 2024 Judgment of: JUDGE CORBETT Date of judgment: 9 July 2025 Catchwords: MIGRATION – Protection visa – Application for review of Registrar - Whether application for judicial review has reasonable prospects of successful prosecution – Whether extension of time should be granted – Extension of time refused - Application for review dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 425, 426, 426A, 426A(1A)(b), 426A(1E), 426(B), 430, 441A(5), 441C(5), 476 Cases cited: BWK24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 866
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission/s: 9 July 2025 Date of hearing: 9 July 2025 Place: Melbourne Solicitor for the Applicant: The applicant appeared in person, self-represented Counsel for the Respondents: Ms H Sassine Solicitors for the Respondents: HWL Ebsworth Lawyers ORDERS
MLG 901 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWK24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
9 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’;
2.The name of the second respondent is amended to ‘Administrative Review Tribunal’;
3.The application for review filed 27 June 2025 be dismissed;
4.The orders that the Registrar made 6 June 2025 are affirmed; and
5.The applicant pay the first respondent's costs and disbursements of and incidental to the application for review, fixed in the sum of $2,040.00.
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
(Revised from transcript)JUDGE CORBETT
These are the reasons for judgment delivered ex tempore on 9 July 2025, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor matters to reflect the intention of the Court.
The applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Act) of a decision made by the second respondent (Tribunal) on 28 March 2024 (substantive application).
On 28 March 2024, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister, not to grant a Protection visa to the applicant. On 6 June 2025, a Registrar of this Court ordered that the substantive application filed by the applicant be summarily dismissed pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). The Registrar delivered written reasons for the decision in comprehensive form (see BWK24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 866 (BWK24)).
The applicant now seeks to review the orders made by the Registrar on 6 June 2025, pursuant to r 21.02 of the Rules (application for review). The application for review was listed for hearing in-person at Melbourne before this Court at 10.00am on 9 July 2025.
An application for review of the exercise of a power by a Registrar must be made within seven days of the Registrar's order. If the application for review is commenced within the time prescribed by the Rules, then the hearing of the application is a hearing de novo. If the application for review is commenced within the time prescribed by the Rules, then the Minister bears the onus of establishing that the substantive application should be summarily dismissed. Summary dismissal will occur if the applicant has no reasonable prospects of successfully prosecuting the claim for judicial review.
The application for review filed by the applicant was not filed until 27 June 2025; that was fourteen days after the date required under the Rules. Therefore, the applicant must obtain an order from this Court extending the time required by the Rules. The Minister opposes the granting of an extension of time.
The power to grant an extension of time is a matter of discretion for the Court. The principles upon which an extension of time may be granted are well-settled. In deciding whether to grant an extension of time, the Court will often have regard to considerations such as the length of delay, whether the applicant has a reasonable explanation for the delay, any prejudice to the respondents or third parties, and the merits of the substantive application. Those principles were summarised in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at [18] (Hunter Valley Developments).
The delay in this case was fourteen days after the initial seven-day period required by the Rules. The explanation for the delay in bringing the application for review was not the subject of an affidavit. The applicant explained from the bar table that he did not know of the rule; that he asked his friends what he should do after the Registrar's decision; and that he filed the application for review after discussing it with his friends.
The solicitor for the Minister appropriately conceded that the Minister would not suffer any prejudice if an extension of time were granted, however, the absence of prejudice alone is not a sufficient reason to grant an extension of time (Hunter Valley Developments at [21]).
The applicant was also invited to explain to the Court why there was merit in his substantive application. As the applicant was self-represented, the Court explained that the role of the Court was to review the decision of the Tribunal for jurisdictional error. The Court explained that jurisdictional error is a substantial mistake, such as an error of law, or because the decision of the Tribunal was due to some significant mistakes. The Court also explained that the Tribunal has the power under the Act to dismiss an application for review for non-appearance and further dismiss an application if no application for reinstatement is made within fourteen days. Therefore, the applicant must persuade this Court that the Tribunal was in error in exercising that power to dismiss.
The applicant claimed that he did not receive notification of the hearing before the Tribunal, because his mobile phone had been damaged in a car accident on 12 February 2024. The applicant handed up two photographs of a damaged vehicle with the photographs bearing the date of 12 February 2024. However, the circumstances surrounding the accident and the damage to the applicant's mobile phone were not explained by affidavit, nor was it explained, when the applicant first knew of the Tribunal's decision to dismiss his application. The applicant claimed that he did not receive notification of the decision made by the Tribunal on 13 March 2024, and did not know of the right of reinstatement. The applicant claimed that he was denied a hearing by the Tribunal, and that this was unfair in the circumstances.
On behalf of the Minister, it was submitted that the substantive application had no merit, because the powers of the Tribunal under s 426A of the Act were clear. If the applicant fails to appear at a hearing before the Tribunal, then the Tribunal has the power, under s 426A, to dismiss the application for review, and then, under s 426A(1)(e) of the Act, the Tribunal must dismiss the application for review if an application for reinstatement has not been made. That is what the Tribunal did on this occasion, and the Minister submits that there was no error in doing so.
The solicitor for the Minister tendered the Court Book which incorporated all relevant documents in relation to the substantive application, and the application for review before the Tribunal. The Court Book was marked as exhibit ‘R1’, and references to ‘CB’ pages are references to pages in that Court Book.
I have reviewed the Court Book and the application for the visa, read the decision of the Tribunal dismissing the application for review for non-appearance and the decision of the Tribunal dismissing the application for review following the fourteen-day period.
An extension of time in this case is refused, because there is no merit in the substantive application for judicial review. It would not be in the interests of the administration of justice to grant an extension of time. For the reasons explained by the Registrar in the decision delivered 6 June 2025, the substantive application does not have any reasonable prospects of success, and there was no failure to provide procedural fairness by the Tribunal. The decision of the Tribunal to dismiss was not unreasonable, and the applicant will not be able to establish jurisdictional error.
I will briefly outline some of the background to the substantive proceeding and the application for the visa, together with the relevant sections of the Act which explain why the substantive application has no merit.
BACKGROUND
The applicant is a citizen of Malaysia and first arrived in Australia with on an Electronic Travel Authority Tourist visa on 20 March 2018 (CB 29).
On 26 June 2018, the applicant applied for a Protection (Class XA) (Subclass 866) visa (visa). The grounds upon which he sought protection were because he was involved in a car and motorcycle accident in January 2018, where the motorcycle rider was killed. The brother of the deceased then threatened the applicant with retribution. The applicant claimed to have been beaten and kicked by the deceased's brother, and that the brother demanded a large sum of money as compensation (CB 29-30). The applicant feared substantial harm if he was to return to Malaysia.
On 17 August 2018, a delegate of the Minister refused the application for the visa. The delegate was not satisfied that there was a real risk of the applicant suffering significant or substantial harm, as required by s 36 of the Act (CB 52-65).
On 29 August 2018, the applicant applied to the Tribunal to review the delegate's decision (CB 76).
On 15 February 2024, the Tribunal invited the applicant via email to attend a hearing in Melbourne to be held on 8 March 2024 (CB 78).
On 1 March 2024 and 7 March 2024, the Tribunal sent SMS reminders to the applicant of the hearing date (CB 104).
On 8 March 2024, the applicant did not attend the hearing before the Tribunal (CB 91-3).
On 13 March 2024, the Tribunal dismissed the application for review pursuant to s 426A(1A)(b) of the Act (CB 97). Attached to the decision record was a fact-sheet containing information about dismissal of applications and the right to reinstatement (CB 98-9). The Tribunal then sent a copy of the decision record to the applicant by email on 13 March 2024 (CB 95-6).
On 28 March 2024, the Tribunal confirmed the Decision to dismiss the application for review pursuant to s 426A(1E) of the Act (Decision) (CB 102-3).
On 7 April 2024, the applicant filed a substantive application with this Court. The substantive application identified seven grounds of review. None of those grounds identified material jurisdictional error, but instead, contained a narrative of the evidence as to why the applicant failed to appear at the Tribunal hearing on 8 March 2024. I accept that the applicant was involved in a car accident in February 2024, and that his mobile phone may have been damaged, but that does not mean that the Tribunal was in error to proceed as it did.
CONSIDERATION
Division 4 of Pt 7 of the Act contains an exhaustive statement of the requirements of the natural justice rule in relation to decisions of the Minister under the Act. Broadly speaking, if the Tribunal provides an applicant with an invitation to appear pursuant to s 425 of the Act, and the applicant does not appear before the Tribunal on the day on which or at the time and place at which the applicant is required to appear, the Tribunal may, under s 426A of the Act, dismiss the application without any further consideration of the application or information before the Tribunal.
If the Tribunal dismisses an application, the applicant has fourteen days after receiving notice of the decision to apply for reinstatement (s 426B of the Act). If there is no application for reinstatement within the fourteen-day period, then the Tribunal must confirm the decision to dismiss and provide a written statement under s 430 of the Act.
In this case, the applicant was given an invitation in accordance with s 425 of the Act and failed to appear before the Tribunal on the date nominated for hearing. The Tribunal dismissed the application for review pursuant to s 426A(1A)(b) and gave notice of that decision to the applicant on 13 March 2024. No application for reinstatement was made by the applicant within the fourteen-day period, and therefore, the Tribunal was compelled to dismiss the application for review under s 426A(1E).
The invitation to appear, the decision to dismiss and the confirmation decision were all given to the applicant by email at the nominated email address provided to the Tribunal. The Act provides that where the Tribunal gives documents to a person by email, the person is taken to have received the documents at the end of the day the Tribunal transmitted those documents (ss 441A(5), 441C(5) of the Act).
The applicant did not provide the Tribunal with notification that his mobile phone had been damaged or give any change of address for notices to be sent to him by email before the hearing date. In the circumstances, there was no procedural unfairness by the Tribunal in following the statutory path prescribed by Div 4 Pt 7 of the Act. There was nothing unreasonable in the way in which the Tribunal dismissed the application for review, which would amount to a jurisdictional error.
The Court adopts the explanation of the grounds of review and the statutory requirements of procedural fairness, which are referred to in the reasons of the Registrar at [17] to [20] of BWK24. Even if there was an extension of time of the application for review, the Court would reach the same decision, namely that the application for judicial review has no reasonable prospects of successful prosecution and should be summarily dismissed. The Court is not satisfied that it is appropriate to grant an extension of time or that it is in the interest of justice to do so. The applicant has not provided an adequate explanation for the delay, and the substantive application has no merit and no reasonable prospects of success, even if an extension of time was granted.
ORDERS
The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.
The name of the second respondent is amended to ‘Administrative Review Tribunal’.
The application for review is dismissed.
The orders of the registrar made on 6 June 2025 are affirmed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application for review, fixed in the sum of $2,040.00.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 21 July 2025
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