CDD24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 893
•11 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CDD24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 893
File number(s): SYG 829 of 2024 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 11 June 2025 Catchwords: MIGRATION – review of Registrar’s decision – where Tribunal dismissed merits review application for non-appearance – no reasonable prospects of success – application dismissed with costs Legislation: Migration Act 1958 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Cases cited: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Kumar v Minister for Immigration [2018] FCCA 2448
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 3 June 2025 Place: Sydney Applicant: In Person Solicitor for the Respondents: Mr M Fisher of Australian Government Solicitor ORDERS
SYG 829 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CDD24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
11 JUNE 2025
THE COURT ORDERS THAT:
1.The application seeking review of a decision by Registrar Rohan on 14 May 2025 be dismissed with costs.
2.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
3.The applicant pay the first respondent’s costs, of and incidental to the application, fixed in the sum of $1,300.
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 PAPADOPOULOS
INTRODUCTION
This matter concerns an application made under section 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), seeking review of a decision by Registrar Rohan (Registrar) on 14 May 2025. The Registrar summarily dismissed the applicant’s substantive application under rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), with costs.
In the substantive application filed on 23 April 2024, the applicant sought judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 28 March 2024. By that decision, the Tribunal confirmed its earlier decision of 13 March 2024 to dismiss the applicant’s merits review application pursuant to section 426A(1A)(b) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The background of this matter was outlined within the written submissions filed by the first respondent (Minister), which I primarily adopt.
The visa application before the delegate
The applicant, a male national of Malaysia,[1] applied for a Subclass 866 Protection (Class XA) visa (protection visa) on 10 July 2018.
[1] Court Book (CB) 42.
On 7 September 2018, a delegate of the Minister refused the applicant’s protection visa application.[2]
[2] CB 55 to 64.
The merits review application before the Tribunal
On 19 September 2018, the applicant sought review of the delegates decision by the Tribunal.[3] Notably, the applicant:[4]
(a)did not appoint a representative;
(b)requested correspondence be directed to himself as the review applicant; and
(c)provided an email address for correspondence (nominated email address).
[3] CB 69 to 70.
[4] CB 70.
On 24 September 2018, the Tribunal wrote to the applicant’s nominated email address requesting he clarify his address (residential address), as the address he provided ‘does not exist’.[5] On the same day, the applicant responded via email clarifying his residential address details.[6]
[5] CB 71.
[6] CB 71.
On 5 December 2022, the applicant contacted the Tribunal using his nominated email address.[7]
[7] CB 81.
On 31 January 2024, the Tribunal sent an email to the applicant requesting he complete a pre-hearing information form.[8]
[8] CB 83.
On 20 February 2024, the Tribunal emailed the applicant, inviting him to a hearing scheduled for 12 March 2024 at 10.00 am, in person, at the Tribunal’s Sydney registry.[9] Attached to the Tribunal’s letter was a document entitled ‘Fact Sheet MR18: Information about Hearings’. The letter and the fact sheet document stated the following:[10]
(a)if the applicant was not able to attend the hearing, he should advise the Tribunal as soon as possible;
(b)the applicant should assume the hearing would go ahead as scheduled unless the Tribunal advised otherwise;
(c)if the applicant did not appear, the Tribunal may make a decision on the application for review or may dismiss the applicant’s application for review without any further consideration of the application or the information before it;
(d)if the Tribunal dismissed the applicant’s application, a written statement would be given to the applicant and he could apply for reinstatement; and
(e)if the applicant did not apply for reinstatement, the Tribunal must confirm the dismissal decision.
[9] CB 84 to 87.
[10] CB 84 to 92.
There was no appearance by or on behalf of the applicant at the 12 March 2024 hearing.[11]
[11] CB 97 to 100, 111.
On 13 March 2024, the Tribunal exercised its discretion to dismiss the review application without any further consideration of the application or information before the Tribunal under s 426A(1A)(b) of the Act (dismissal decision).[12] The Tribunal notified the applicant of the decision on the same day and advised the applicant he could seek reinstatement of his application for review within 14 days of the date of the letter, that is by 27 March 2024.[13]
[12] CB 101 to 104.
[13] CB 102.
The Tribunal’s dismissal decision
In exercising its discretion to make the non-appearance decision, the Tribunal found that:
(a)the applicant was invited under s 425 of the Act to appear before the Tribunal, and the invitation noted that failure to attend the hearing may result in dismissal of the application;[14]
(b)having reviewed the Tribunal file, the applicant was invited to the hearing in accordance with s 441A(5) of the Act;[15]
(c)the Tribunal had sent the hearing invitation to the applicant’s nominated email address and had previously sent and received correspondence with the applicant at this email address;[16]
(d)the applicant did not attend the Tribunal hearing;[17]and
(e)the applicant had not attempted to contact the Tribunal in relation to the hearing and there had been limited engagement with the Tribunal.[18]
[14] CB 104 at [1].
[15] CB 104 at [1].
[16] CB 104 at [3].
[17] CB 104 at [2].
[18] CB 104 at [4].
In these circumstances, the Tribunal decided to dismiss the application without further consideration of the application or the information before it.[19]
[19] CB 104 at [4].
The applicant did not seek reinstatement of his application for review within the prescribed 14-day period.
On 28 March 2024, the Tribunal confirmed the non-appearance dismissal decision pursuant to s 426A(1E) of the Act (confirmation decision).[20] The applicant was notified of this confirmation decision on the same day.[21]
[20] CB 109 to 110.
[21] CB 107 to 108.
The Tribunal’s confirmation decision
In making the confirmation decision, the Tribunal found that the applicant had been notified of the non-appearance decision in accordance with s 426B(5) of the Act, and that he had been advised of his entitlement to seek reinstatement of his application within 14 days of that notification.[22]
[22] CB 110 at [3].
The Tribunal found that the applicant had not availed himself of the opportunity to seek reinstatement of his application and, in those circumstances, was required to confirm the non-appearance decision.[23]
[23] CB 110 at [4]-[5].
PROCEEDINGS BEFORE THIS COURT
On 23 April 2024, the applicant sought review of the Tribunal’s confirmation decision. The applicant raised the following eight grounds of review (reproduced below without alteration):
(1)member is not believe my in my claims that I made.
(2)member is don’t have any jurisdiction in my story.
(3)because of English understanding that im not able to attend my hearing.
(4)member could not be able to understand my harm if i return to my country.
(5)lake of understanding im not able to attend the hearing.
(6)im not able to show my fear to tribunal member.
(7)member also not understand my fear.
(8)member could not understand my situation.
In response, the Minister sought an order that the application be dismissed pursuant to r 13.13(a) of the GFL Rules and an order that the applicant pay the Minister’s costs fixed in a specified amount.
On 14 May 2025, the matter was summarily dismissed by order of the Registrar, pursuant to r 13.13(a) of the GFL Rules, and the applicant ordered to pay the first respondent’s costs in the sum of $4,000.
On 20 May 2025, the applicant lodged an application for review of the Registrar’s decision.
On 27 May 2025, my Chambers sent a notice of listing to the parties listing the matter for hearing of the review application on 3 June 2025 at 10.15 am.
SUMMARY DISMISSAL
The question of whether the substantive application ought to be summarily dismissed falls to be determined by the Court on a de novo basis.
Section 143 of the FCFCOA Act relevantly provides:
143 Summary judgment
…
(2) The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.
Rule 13.13 of the GFL Rules provides:
13.3 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
In determining an application for summary dismissal, the Court is not required to decide whether the Tribunal’s decision is affected by jurisdictional error. Rather, the inquiry is directed to whether the proceeding discloses a real or genuine dispute that may reasonably be resolved in the applicant’s favour: see AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33] per Judge Given, and the authorities cited therein.
As French CJ and Gummow J explained in Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 in relation to section 31A of the Federal Court of Australia Act 1977 (Cth), which is comparable to section 143 of the FCFCOA Act:
The section … will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the classes of case in the long-standing category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.
The concept of a proceeding having ‘no reasonable prospect of success’ imposes a lower threshold than that which previously required the proceeding to be bound to fail. Nevertheless, the discretion to summarily dismiss must be exercised with caution.
The assessment of whether an applicant has no reasonable prospect of success in a proceeding necessarily involves an evaluative judgment in the absence of a fully developed factual matrix and argument. The relevant provisions confer a discretionary power upon the Court.
Merits of the underlying application
At hearing, the applicant was asked whether he wished to expand upon or further particularise the grounds originally advanced. The applicant declined to do so.
Most notably, the applicant stated during the hearing that, in his view, the Tribunal’s decision was not affected by jurisdictional error. Nevertheless, I will duly consider the grounds advanced by way of his originating application.
The Minister submits, and I agree, that the hearing invitation issued on 20 February 2024 complied with the requirements of s 425A of the Act. In support of that submission, the Minister contends the invitation:
(a)gave notice that the hearing would take place on 12 March 2024 at 10:00 am, in person, at the Tribunal’s Sydney registry;
(b)was sent to the applicant’s nominated email address and was therefore given by a method specified in s 441A of the Act;
(c)was provided 21 days prior to the hearing, thereby exceeding the prescribed minimum notice period of 14 days; and
(d)included a statement as to the effect of s 426A of the Act, namely that if the applicant failed to appear at the scheduled hearing, the Tribunal may proceed to determine the review without taking further steps to enable him to appear, or may dismiss the application without further consideration of the material before it.
CONSIDERATION
By way of written and oral submissions, the Minister thematically addressed the applicant’s grounds by the nature of alleged error. The eight grounds were grouped as follows:
(a)Grounds 1, 4, 7, and 8, as they contend a failure of consideration on the part of the Tribunal;
(b)Ground 2, as it contends that the Tribunal does not have jurisdiction to hear the matter; and
(c)Grounds 3, 5, and 6, as they contend a denial of procedural fairness.
Having reviewed the grounds, and in the absence of meaningful submissions from the applicant, I propose to consider them in accordance with the Minister’s classification and characterisation.
Grounds 1, 4, 7 and 8
Grounds 1, 4, 7 and 8 are directed to the contention that the Tribunal failed to consider the applicant’s claim for a visa. That contention is misconceived.
On 20 February 2024, the Tribunal issued a hearing invitation to the applicant. It did so because it was unable to make a favourable decision on the papers alone – a matter which was brought to the attention of the applicant in that invitation. The applicant did not attend the hearing, despite having been properly notified. In those circumstances, the Tribunal’s discretion under s 426A(1) of the Act was enlivened, permitting it to either proceed to make a decision on the review or dismiss the application without further consideration of the application or the material before it: see s 426A(1A) of the Act.
The Minister submits that the Tribunal’s decision to dismiss the application was a lawful exercise of that discretion. I agree with that submission. Taking into account the applicant’s lack of engagement with the Tribunal, particularly in terms of providing information to support his case, it was open to the Tribunal to exercise the discretion in the manner that it did. In circumstances where the applicant had limited engagement with the Tribunal, and in the absence of any engagement by the applicant in relation to the scheduled hearing, the statutory discretion was exercised reasonably. There is an evident and intelligible justification for the Tribunal having exercised the discretion in that manner: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [29], [63], [76] and [88].
Further, the applicant did not seek reinstatement of the application within 14 days of being notified of the non-appearance decision. In those circumstances, the Tribunal was required to confirm the dismissal pursuant to s 426A(1E) of the Act. As that decision was made in accordance with a statutory obligation, the principles of legal unreasonableness do not apply: see Kumar v Minister for Immigration [2018] FCCA 2448 at [37] per Judge Kirton.
In this context, the applicant’s assertion that the Tribunal committed jurisdictional error by failing to consider his application cannot be sustained. It follows that these grounds, considered individually or collectively, have no reasonable prospect of success.
Ground 2
Ground 2 alleges jurisdictional error but does so without identifying any basis or providing particulars. No jurisdictional error is apparent on the face of the material.
Grounds 3, 5 and 6
Grounds 3, 5 and 6 appear to allege a denial of procedural fairness, including a failure by the Tribunal to accommodate the applicant’s limited English language proficiency.
These claims are not supported by the record. The Tribunal complied with its procedural fairness obligations as given in Part 7, Division 4 of the Act. In particular, it properly invited the applicant to attend the hearing and notified him of the non-appearance dismissal decision in accordance with the statutory requirements.
Insofar as it is alleged that the Tribunal failed in some capacity given the applicant’s limited English language proficiency, I agree with the Minister that the Tribunal was under no obligation to provide the hearing invitation in a language other than English. Importantly, there was nothing before the Tribunal to suggest the applicant did not understand the invitation. The evidentiary record reveals that the applicant completed his application without assistance and corresponded with the Tribunal in English.[24] If the applicant did not understand the contents of the hearing invitation, it was incumbent upon him to take steps to seek clarification. To that end, there is no record of the applicant having sought clarification from the Tribunal in relation to the contents of the hearing invitation or any subsequent correspondence issued by the Tribunal.
[24] CB 69 to 70, 71 and 81.
I further agree with the Minister that because the applicant was notified of the non-appearance dismissal decision and his right to seek reinstatement in a manner that complied with s 426B of the Act, the Tribunal was under no further obligation to consider alternative methods of notification.
Finally, to the extent that the applicant alleges he would not have been able to meaningfully participate in the hearing due to linguistic barriers, the hearing invitation indicated that a Mandarin interpreter had been arranged, consistent with the applicant’s request in his application for review.[25] In those circumstances, the Tribunal had discharged its obligation to offer the applicant a meaningful opportunity to attend a hearing at which he could appear and give evidence and present arguments relating to the issues arising in relation to the decision under review.
[25] CB 69, 85.
Accordingly, no jurisdictional arises on the basis of these grounds.
CONCLUSION
For the above reasons, the application before this Court is dismissed.
As a consequence of changes to Ministerial portfolio arrangements following the recent Federal Election on 23 May 2025, the name of the first respondent is to be amended to ‘Minister for Immigration and Citizenship’.
Costs
I heard the parties in relation to costs and note that the Minister sought costs to be paid by the applicant fixed in the sum of $1,300.
I find that costs should follow the event and that this amount is reasonable in the circumstances given the work undertaken by the Minister in this case including, but not limited to, the work involved in reviewing the application, considering the substantive issues, and appearing at the hearing.
At hearing, the applicant provided that he accepts the Minister’s position as it relates to costs in the event of an unsuccessful application.
I will so order that the Minister’s costs be paid by the applicant fixed in the sum of $1,300. This amount is in addition to the $4,000. in costs fixed by the Registrar on 14 May 2025.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 11 June 2025
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