CJY21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1113
•17 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CJY21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1113
File number(s): MLG 1819 of 2021 Judgment of: JUDGE BINGHAM Date of judgment: 17 July 2025 Catchwords: MIGRATION LAW – application for review of Registrar’s decision – where Registrar summarily dismissed the judicial review application – Tribunal found no jurisdiction to review the Delegate’s decision to refuse a protection visa as review application was filed 143 days out of time – no prospects of success – application dismissed with costs – Registrar’s decision affirmed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143(2) and 256(1)
Migration Act 1958 (Cth) ss 66(2)(d)(ii) and 494C
Migration Regulations 1994 (Cth) reg 4.31(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), 21.02 and 21.03
Cases cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Australian Securities and Investments Commission v Cassimatis [2013] F CA 641
BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127
Feiteiro & Feiteiro [2019] FamCA 647
Henley & Henley [2019] FamCA 101
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
Newman & Tate [2020] FamCA 1114
Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Spencer v The Commonwealth (2010) 241 CLR 118
Tomko v Palasty (No 2) [2007] NSWCA 369; 71 NSWLR 61
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 96 ALJR 819
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submission/s: 1 July 2025 Date of hearing: 1 July 2025 Place: Melbourne The Applicant: Appeared in person Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1819 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CJY21
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
17 JULY 2025
THE COURT ORDERS THAT:
1.The Application for Review filed on 19 June 2025 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $1,000.00.
AND THE COURT NOTES THAT:
A.The Orders of Registrar Munro dated 12 June 2025 remain in full force and effect.
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 BINGHAM:
By an Application for Review filed in this Court on 19 June 2025 the Applicant seeks review of a decision of a Registrar of this Court dated 12 June 2025 (Application for Review). On 12 June 2025 the Registrar made an Order pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFLRules) summarily dismissing an application for judicial review made by the Applicant (12 June 2025 Orders).
BACKGROUND
The Applicant is a citizen of India. They arrived in Australia on a visitor visa on 15 April 2019. The Applicant applied for a Protection (Class XA) (Subclass 866) (Visa) on 10 October 2019 (Visa Application). The Delegate (Delegate) of the First Respondent (Minister) decided not to grant the Visa on 8 December 2020 (Delegate’s Decision).
The Applicant applied to the Tribunal for review on 27 May 2021.
The Tribunal found that it did not have jurisdiction to conduct merits review on 30 June 2021 (Tribunal’s Decision). The Applicant was notified on 1 July 2021. The Tribunal determined that the Applicant had filed the merits review application outside of the prescribed 28 days commencing from the day the Applicant is notified of the Delegate’s Decision as required by reg 4.31(2) of the Migration Regulations 1994 (Cth) (Migration Regulations). The Tribunal was satisfied that the Applicant was notified of the Delegate’s Decision on 8 December 2020 in accordance with s 494C of the Migration Act 1958 (Cth) (Migration Act) and found that it had no discretion to extend time.
The Applicant filed the Application for Judicial Review in this Court on 22 July 2021 (Initiating Application). The Initiating Application was accompanied by an Affidavit of the Applicant that annexed the written reasons for the Tribunal’s Decision. The Minister filed an Amended Response on 1 April 2025 seeking summary dismissal of the Initiating Application.
The summary dismissal hearing was set down for 12 June 2025 (Summary Dismissal Hearing) and Orders were made on 8 April 2025 for the filing of material by both parties. The Applicant attended the Summary Dismissal Hearing with the assistance of a Punjabi interpreter.
On 12 June 2025 the Registrar summarily dismissed the Initiating Application pursuant to rule 13.13(a) of the GFL Rules with costs.
On 19 June 2025 the Applicant lodged the Application for Review, which was accepted by the Court for filing on 19 June 2025. No affidavit was filed by the Applicant in support of the Application for Review.
On 24 June 2025 I made Orders listing the Application for Review for a Hearing on 1 July 2025 and for the filing of an outline of submissions from each party.
On 30 June 2025 the Minister filed outline of submissions seeking dismissal of the Application for Review together with costs. No written submissions were filed by the Applicant.
The hearing of the Application for Review was held on 1 July 2025 (Review Hearing). The Applicant appeared in person with the assistance of a Punjabi interpreter and the Minister was represented by a solicitor.
APPLICATION FOR REVIEW
Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides:
256 Review of power exercised by delegate
(1)A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
A review application is not an appeal but rather a hearing de novo. This means that the Applicant does not have to “demonstrate any material error of fact, or principle, in the order under review” and the Court considers the matter afresh: Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39]. The task of the Court when considering a review application was described by Deputy Chief Justice McClelland in Newman & Tate [2020] FamCA 1114 at [12] as “not one of ascertaining whether, in the making of the Order, there was an error on the part of the Registrar”. The review of a Registrar’s determination is an original hearing in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) [2007] NSWCA 369; 71 NSWLR 61 at [43].
Summary dismissal
Registrar’s have delegated power to summarily dismiss a proceeding. Orders can be made for summary dismissal under rule 13.13(a) of the GFL Rules or under s 143(2) of the FCFCOA Act. The Court must establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: Spencer v The Commonwealth (2010) 241 CLR 118 (Spencer); Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przybylowski). The Court is not required to be satisfied that the applicant is bound to fail. The party submitting the application for summary dismissal has the onus of proving that the applicant has no reasonable prospects of success.
Given orders are made at an early stage of the proceedings, the discretionary power to summarily dismiss an application must be exercised with caution. In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, Gaudron, McHugh, Gummow and Hayne JJ commented as follows at [57]:
[…] Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
Citations omitted.
The Court must undertake “a critical examination of the available material to determine whether there is a real question of law or fact which should be decided at trial”: Spencer; Przybylowski; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46].
In the Application for Review the Applicant sought a review of the Orders of the Registrar dated 12 June 2025 summarily dismissing his initiating application. The relief sought by the Applicant was expressed in the following manner:
Details of orders sought to be reviewed
I am seeking to review the following orders:
1.The Hon. Registrar dismissed the application without considering the legal and factual errors contained in the decision.
2.The Hon, Registrar should have found that the Tribunal failed to properly deal with that I met the criteria for a protection visa set out in s. 36 of the Act and Schedule 2 to the Migration Regulation 1994(cth).
Orders sought
1.To set aside the Judgement of the Registrar Munro dated on 12 June 2025.
2.To remit the matter to the ART to determine according to law.
3.An order of cost. And any further orders that this honourable court may deep appropriate.
Rule 21.02 of the GFL Rules provides that an application for review of a Registrar’s decision must be made within seven (7) days of the exercise of a power by a Registrar. An application for review must be listed for hearing as soon as possible, and unless it is impractical to do so, within 14 days after the date of filing[1].
[1] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 21.03.
The Registrar’s Orders were made on 12 June 2025. The Application for Review was made within the time prescribed by rule 21.02 on 19 June 2025.
THE REVIEW HEARING
At the Review Hearing the Applicant appeared as a litigant in person with the assistance of a Punjabi interpreter. I confirmed that the interpreter and the Applicant understood each other, and that the Applicant was willing to proceed with the hearing with the assistance of the interpreter. I explained to the Applicant the nature of the Review Hearing that is it being a hearing de novo and the manner in which the hearing would be conducted. I established that the Applicant had copies of the Court Books, the Minister’s submissions,[2] the Application for Review and the Initiating Application. I was satisfied that the Applicant was able to participate in the Review Hearing.
[2] Filed by the Minister on 29 April 2025 and 30 June 2025.
THE PROSPECTS OF SUCCESS OF THE SUBSTANTIVE APPLICATION
The Minister pressed the application for summary dismissal of the Initiating Application.
The question before the Court is whether any of the grounds in the Initiating Application are ‘arguable’, ‘reasonably arguable’, ‘sufficiently arguable’, or have ‘reasonable prospects of success’: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]. In undertaking that assessment, the Court is to undertake an impressionistic examination of the grounds of review: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 at [68]. A closer examination of the merits is appropriate in some cases: see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 96 ALJR 819 at [18].
The grounds of review in the Initiating Application (Ground of Review) were:
1. I was denied the natural justice.
2.The Tribunal breached section 424A(1) of the Act in failing to provide me to comment of information specific to my claims.
3.The Tribunal failed to provide me with an opportunity to appear before it, and thus failed to comply with the mandatory requirement of section 425(1)
The Minister submitted that the substantive application has no reasonable prospects of success and was without merit. It was also submitted that this was a matter where the Applicant’s Initiating Application was hopeless or bound to fail.
In dealing with the Grounds of Review the Minister submitted that Ground 1 was not sufficiently particularised for it to be meaningful. Grounds 2 and 3, it was submitted, were misconceived as the Tribunal’s procedural fairness obligations had no application where the Tribunal had no jurisdiction to conduct the review. It was further submitted that to the extent that the Tribunal was required to accord common law procedural fairness it wrote to the Applicant on 28 May 2021 seeking the Applicant’s comments on its preliminary view that it did not have jurisdiction.
It was contended by the Minister that the finding of the Tribunal that it had no jurisdiction was free from jurisdictional error. It was submitted that the notification letter and Delegate’s Decision was sent on 8 December 2020 to the Applicant’s email address as contained in his Visa Application. The notification and decision were deemed to be received by the Applicant that same day by reason of the operation of s 494C(5) of the Migration Act. The Applicant had 28 days from 8 December 2020 to seek a review from the Tribunal. The last day upon which the Applicant could seek a review was 4 January 2021. The Applicant did not apply for a review until 27 May 2021. The Tribunal had no power or discretion to extend time.
The Minister quite properly submitted, in the absence of such a ground being raised by the Applicant, that the Delegate’s notification letter complied with s 66(2)(d)(ii) of the Migration Act. The notification letter was emailed to the Applicant and stated the time the Applicant had to apply to the Tribunal for review and that the Applicant was taken to have received the notification at the end of the day on 8 December 2020.
At the conclusion of the Minister’s oral submissions, I asked the Applicant about his Grounds of Review and why he says he might win. The Applicant said that he should be given an opportunity to see the ‘ART’ again. I explained the Minister’s case, being that the late filing of his application for review before the Tribunal meant the Tribunal had no jurisdiction, and asked him whether he had anything to say about the late filing of his application in the Tribunal. The Applicant said that the email was sent to his agent not to him so he did not see it. He also said that it was his cousin’s email. I then took the Applicant to the letter from the Tribunal dated 11 June 2021 where he stated in correspondence to the Tribunal that “The decision copy was emailed to me on 8 December 2020, but unfortunately I missed this letter. I only check my email every now and then […]”. He said to me that the email is different and that he was not using that email. The Applicant made no further submissions on the prospects of success of his Initiating Application.
I have considered the submissions of the Minister and the Applicant I have concluded that the Applicant’s Initiating Application has no prospects of success because the Applicant failed to file his application for review within the time prescribed by regulation 4.31(2) of the Migration Regulations. As a consequence, the Tribunal did not have jurisdiction to undertake a merits review and was not seized with the discretion to extend the time period for the filing of such an application.
In so far as necessary I accept the Minister’s submissions on Ground 1 that this ground is not sufficiently particularised[3] and consequently has no prospect of success.
[3] WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816, [20] and [24].
With respect to Grounds 2 and 3, I accept the Minister’s submissions that because the Tribunal did not have jurisdiction its procedural fairness obligations under the Migration Act were not enlivened. I also accept that common law procedural fairness was accorded to the Applicant. Grounds 2 and 3 have no prospect of success.
CONCLUSION
I have determined that the Initiating Application has no reasonable prospects of success. The Minister’s application for the Initiating Application to be summarily dismissed should be granted. I otherwise dismiss the Application for Review and affirm the Registrar’s 12 June 2025 Orders.
The Minister sought costs of $1,000.00 which is less than the fixed scale amount, as prescribed in Item 2, Division 1, Part 2 of Schedule 2 of the GFL Rules. Accordingly, the Applicant is to pay the Minister’s costs in the sum of $1,000.00 with respect to the Application for Review. For the avoidance of doubt the Applicant is also to pay the cost of the summary dismissal proceedings before the Registrar in the amount of $4,189.38.[4]
[4] Orders of Registrar Munro dated 12 June 2025, Order 4.
Orders will be made accordingly.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 17 July 2025
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