DGI23 v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1485
•9 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DGI23 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1485
File number(s): SYG 2083 of 2023 Judgment of: JUDGE ZIPSER Date of judgment: 9 September 2025 Catchwords: MIGRATION – Review of decision of registrar dismissing application to reinstate judicial review proceeding – judicial review proceeding dismissed due to non-appearance of applicant at callover – whether applicant provided satisfactory explanation for non-appearance at callover – prospects of success of underlying judicial review proceeding
PRACTICE AND PROCEDURE – Observations concerning abuse of process and consequences for applicant
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1)(c), 17.05(2), 21.02
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256
Migration Act 1958 (Cth) s 476
Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
DGI23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1203
FBS18 v Minister for Home Affairs [2019] FCAFC 196
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 176
Roser v Immigration Review Tribunal (No 2) (1992) 29 ALD 182
SZBNW v Minister for Immigration [2004] FMCA 436
Williams v Spautz (1992) 174 CLR 509
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 25 August 2025 Applicant: In person Solicitor for the Respondents: Jonathan Djasmeini (MinterEllison) ORDERS
SYG 2083 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DGI23
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
9 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application in a proceeding lodged on 5 August 2025 is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $550.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 5 August 2025, the applicant lodged, pursuant to r 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules) (as they then were), an application for review (Registrar Review Application) of a decision of a registrar of this Court dated 30 July 2025 published as DGI23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1203 (Registrar Decision). The registrar dismissed an application in a proceeding by the applicant seeking reinstatement of her application for judicial review. The application for judicial review:
(a)was filed in December 2023; and
(b)dismissed on 21 February 2025 for non-appearance by the applicant at a directions hearing that day.
The Registrar Review Application was listed for hearing in this Court on 25 August 2025. For the reasons explained below, the Court dismisses the Registrar Review Application.
FACTUAL BACKGROUND
In June 2019, the applicant, a citizen of Malaysia, after arriving in Australia in April 2019, applied for a protection visa.
In September 2019, a delegate of the first respondent refused to grant the applicant a protection visa.
In October 2019, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision.
On 7 November 2023, the Tribunal invited the applicant to attend a hearing by telephone on 1 December 2023.
On 26 November 2023, the applicant returned to the Tribunal a completed response to hearing invitation form. In the completed form, the applicant “consent[ed] to the Tribunal making a decision on the papers without taking further steps to allow [the applicant] to appear”.
On 1 December 2023, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a protection visa.
PROCEEDINGS IN THIS COURT
Judicial review application by applicant and dismissal for non-appearance at callover
On 21 December 2023, the applicant filed an application in this Court under s 476 of the Migration Act 1958 (Cth) (Act) seeking judicial review of the Tribunal’s decision (Originating Application). The grounds in the application were (as written):
1. I believe that the case officer made a jurisdiction error by saying that I did not face a real risk of significant faced harm from illegal debt collectors because I joined money games investment plan. My family and I shall facing harm from illegal debt collectors if found that I return to Malaysia. if I have return to Malaysia may face harm or kill by illegal debt collectors, because local authorities cannot help or protect me for 24 hours. The threat is real and significant, which would cause a fatal influence on me. Therefore, I would like to apply for protection in Australia. However, the case officer failed to investigate the applicant's claims by misconstruing the details as set out in s36(2)(a), s36(2C), s36(3), s5H(1) of the Act and Schedule 2 to the Migration Regulations 1994. The officer erroneously construed the existence of the risk of life or significant harm to the applicants upon their return to Malaysia.
2. I believe that the AAT case officer made a jurisdiction error by affirming the decision not to grant the applicant a protection visa. The AAT case officer failed to consider my claim or integer of a claim and made an unreasonable decision.
3.I seek for my claims to be given a second chance for me to provide more details to strighter my claims but not just to concern.
The application included a contact email address for the applicant (Applicant’s Email Address).
On 5 February 2025, the registry sent an email to the parties, including to the applicant at the Applicant’s Email Address, stating that the proceeding was listed for callover by telephone before a registrar on 19 February 2025. The email provided a phone number to dial into the callover. The email added:
It is very important you attend the Callover listing. If you miss the Callover listing and do not appear by telephone, your matter may be dismissed and costs may be ordered against you.
At the callover on 19 February 2025, there was no appearance by the applicant. The registrar made an order that the Originating Application be dismissed for non-appearance pursuant to r 13.06(1)(c) of the 2021 Rules.
On 19 February 2025, the registry sent an email to the parties, including to the applicant at the Applicant’s Email Address, attaching the orders made by the registrar that day. The orders included:
The application for judicial review be dismissed 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.
The covering email stated:
I confirm that this matter has now been finalised in the Federal Circuit and Family Court of Australia.
Reinstatement Application
On 10 June 2025, the applicant lodged an application in a proceeding seeking reinstatement of the Originating Application (Reinstatement Application).
On 20 June 2025, the Reinstatement Application was listed for directions before a registrar of this Court. The applicant appeared by telephone with the assistance of a Mandarin interpreter. The registrar listed the Reinstatement Application for hearing on 30 July 2025 and made procedural orders leading up to the hearing, including that the applicant file and serve a written submission, any draft amended application and evidence, by 11 July 2025.
The orders made on 20 June 2025 included the following note:
The Court notes that the Court explained to the applicant that the factors the Court may consider in determining whether to reinstate the application for judicial review include the following:
A. Whether there is a reasonable explanation for the applicant’s absence at the hearing at which the application for judicial review was dismissed for nonappearance;
B.The extent of the delay between the dismissal of the application for judicial review and the lodging of the application seeking reinstatement;
C.Whether any prejudice might flow to other parties if reinstatement were ordered, and how any such prejudice may be alleviated; and
D.Whether the application for judicial review has arguable prospects of succeeding if it is reinstated.
Prior to the hearing of the Reinstatement Application, the applicant did not file or serve further materials.
On 30 July 2025, there was a hearing of the Reinstatement Application before a registrar of this Court. The applicant appeared by Microsoft Teams with the assistance of a Mandarin interpreter. At the end of the hearing, the registrar dismissed the Reinstatement Application. The registrar provided reasons for his decision in the Registrar Decision.
Registrar Review Application and hearing on 25 August 2025
On 5 August 2025, the applicant lodged the Registrar Review Application pursuant to r 21.02 of the 2021 Rules. The orders sought by the applicant were (as written):
1. Minister For Immigration, Citizenship, and Multicultural Affairs and Administrative Appeals Tribunal and Federal Circuit and Family Court of Australia was unfairly treated my claims and evidence with wendesbury unreasonableness.
2. Minister For Immigration, Citizenship, and Multicultural Affairs and Administrative Appeals Tribunal, the Federal Circuit and Family Court of Australia did not apply the legal provisions of s 36(2)(a), (aa), (b), or (c), s 5H(1)(a), s 5H(1)(b), s 5J(1), 5J(2)-(6), ss 5K-LA, s 65 of the Migration Act 1958 properly to assess my case, therefore seeking Minister For Immigration, Citizenship and Multicultural Affairs and Administrative Appeals Tribunal and Federal Circuit and Family Court of Australia to relief the no jurisdiction decision of 21/0/2023, 21/02/2025 about my case and has jurisdiction on my case
3. The main reason about delay of appealing only because my English is very bad and no any knowledge about Australia court system, further more I did not read English well, so I need more time to check online and consult other people to find out the way how to make a appealing toward to court, so I made my appealing application out of the time frame.
On 12 August 2025, the Court listed the Registrar Review Application for hearing on 25 August 2025 and made procedural orders, including that the applicant file and serve a submission and any evidence in support of the application by 19 August 2025. On the same day, the Court emailed the orders to the parties.
The applicant did not file further materials in support of the Registrar Review Application before the hearing on 25 August 2025.
At the hearing of the Registrar Review Application before me on 25 August 2025, the applicant appeared unrepresented, by video link, assisted by a Mandarin interpreter. Jonathan Djasmeini of MinterEllison appeared for the first respondent.
At the commencement of the hearing, the applicant acknowledged that she had received a copy of a Court Book, filed and served by the first respondent in June 2025, which contained the Tribunal’s decision and other documents relevant to her application. The applicant added that she did not have access to her copy of the Court Book at the hearing.
I asked the applicant why she lodged the Registrar Review Application. She replied that she wants to stay in Australia. I explained that the Court’s role was limited to reviewing the Registrar Decision. I asked the applicant what orders she wanted the Court to make. The applicant replied that there is not much to review and she wants to extend her time in Australia.
I explained to the applicant that, to try to succeed in the Registrar Review Application, she had the following tasks:
(a)She must persuade the Court that she had a reasonable explanation for her non-appearance at the callover on 19 February 2025.
(b)She must provide an explanation for her delay of about four months in lodging the Reinstatement Application between 19 February 2025 (date of dismissal for non-appearance) and 10 June 2025 (date of lodgement of Reinstatement Application).
(c)She must persuade the Court the Originating Application has arguable prospects of success if reinstated.
Mr Djasmeini tendered the Court Book which included:
(a)the Tribunal’s decision dated 1 December 2023 and documents before the Tribunal;
(b)the Originating Application and a supporting affidavit of the applicant filed in December 2023; and
(c)the Reinstatement Application and a supporting affidavit of the applicant lodged on 10 June 2025.
I also read the affidavit of the applicant lodged with the Registrar Review Application on 5 August 2025 (which is identical in content to the applicant’s affidavit lodged on 10 June 2025) and the affidavit of Tahlia Jackson filed on 23 July 2025. I also explained that I had before me the orders made by a registrar of the Court on 19 February 2025, 20 June 2025 and 30 July 2025, and the Registrar Decision dated 30 July 2025.
I asked the applicant if there were any further documents she wanted the Court to consider. The applicant replied “No”.
I invited the applicant to make closing oral submissions. She stated the following;
(a)In relation to her explanation for not appearing at the callover on 19 February 2025, the applicant initially said that a friend told her that she did not need to attend the callover because she did not speak good English. When I asked the applicant for the name of her friend and the date of her conversation with her friend, the applicant appeared to give a different explanation for not attending the callover, being that she received the email from the registry informing her about the callover but then forgot to attend. I asked the applicant if she had included this explanation in her affidavit evidence before the Court. She said that she had not.
(b)In relation to her delay of about four months in lodging the Reinstatement Application, the applicant accepted that on 19 February 2025 she received an email from the Court informing her that her judicial review proceeding in the Court was finalised. The applicant’s explanation appeared to be that, at a point in time after 19 February 2025, she discovered that her visa had expired, and this event caused her to lodge the Reinstatement Application on 10 June 2025.
(c)In relation to whether the Originating Application has arguable prospects of success, I invited the applicant to identify a potential jurisdictional error in the Tribunal’s decision. The applicant replied with words to the effect of:
There is no mistake. I just want to lodge an appeal to see if I can extend time in Australia.
Mr Djasmeini then made oral submissions.
RULES AND PRINCIPLES CONCERNNG REINSTATEMENT APPLICATIONS AND REVIEW OF REGISTRAR DECISIONS
Reinstatement applications
At the time the applicant filed the Reinstatement Application in June 2025, r 17.05(2) of the 2021 Rules relevantly provided:
The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party.
In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7] Ryan J stated:
In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
•whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
•the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
•whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.
In FBS18 v Minister for Home Affairs [2019] FCAFC 196 (FBS18) at [50] the Full Court stated that the primary judge is required to consider “whether or not it was in the interests of justice to reinstate the applicant’s application”. The Full Court at [53] added “the factors that are often considered are not mandatory relevant considerations but potential aspects of what is in the interests of justice in a particular case”. The Full Court at [60] stated there was nothing in MZYEZ at [7] which was inconsistent with the Full Court’s approach.
In CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15) at [4] Mortimer J stated:
As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
In the present proceeding, an additional matter the applicant must address is her delay of about four months between 19 February and 10 June 2025 in lodging the Reinstatement Application.
Review of registrar decisions
Section 256(1) and (2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides:
(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.
(2)The Federal Circuit and Family Court of Australia (Division 2) may, on application under subsection (1) or on its own initiative, review an exercise of power by a delegate under section 254, and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
At the time the applicant lodged the Registrar Review Application on 5 August 2025, and at the time of the hearing of the Registrar Review Application on 25 August 2025, Part 21 of the 2021 Rules contained court rules concerning review by the Court of the exercise of powers by registrars. Commencing from 1 September 2025, the 2021 Rules were replaced by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (2025 Rules). Part 3 of the 2025 Rules contains court rules concerning review by the Court of the exercise of powers by registrars.
Whether a review is considered under the 2021 Rules or the 2025 Rules, some common provisions are that a judge of the Court:
(a)hears an application for review of an exercise of power by a registrar as a hearing de novo;
(b)receives as evidence any affidavit or exhibit tendered before the registrar; and
(c)may with leave receive further evidence.
CONSIDERATION
Whether reasonable explanation for absence from callover on 19 February 2025
The applicant has had a number of opportunities to provide affidavit evidence to explain why she did not attend the callover on 19 February 2025. No explanation appears in the affidavit accompanying the Reinstatement Application lodged on 10 June 2025, nor in her affidavit accompanying the Registrar Review Application lodged on 5 August 2025. Nor has the applicant taken up opportunities provided to her on other occasions to file affidavit evidence.
The explanation provided by the applicant in closing oral submissions on 25 August 2025 (see paragraph 29(a) above) is unsatisfactory. There is also an inconsistency between her first explanation (that a friend told her not to attend the callover) and her second explanation (that she forgot to attend the callover). Further, both explanations are inconsistent with the explanation she gave the registrar at the hearing of the Reinstatement Application on 30 July 2025 - see Registrar Decision at [10].
The applicant’s failure to adequately explain her non-appearance at the Callover weighs against reinstatement.
Delay in lodging Reinstatement Application
The applicant has had a number of opportunities to provide affidavit evidence to explain her delay of close to four months between 19 February and 10 June 2025 in lodging the Reinstatement Application. The applicant stated in paragraph 4 of her affidavit accompanying the Reinstatement Application lodged on 10 June 2025:
The main reason about delay of appealing only because my English is very bad and no any knowledge about Australia court system, further more I did not read English well, so I need more time to check online and consult other people to find out the way how to make a appealing toward to FOCA, so I made my appealing application out of the time frame.
I agree with the comments of the registrar in the Registrar Decision at [12] that, for reasons provided by the registrar, this “delay of close to four months … has not been adequately explained”.
The additional explanation provided by the applicant in closing oral submissions on 25 August 2025 (see paragraph 29(b) above) is also unsatisfactory. The explanation suggests the applicant is attempting to use court procedures for the ulterior purpose of extending her stay in Australia. If so, this would be an abuse of the process of the Court.
The applicant’s failure to adequately explain her relatively lengthy delay in seeking reinstatement weighs against reinstatement.
Prejudice to first respondent
The first respondent would not suffer any significant prejudice if the Originating Application is reinstated. However, “the mere absence of prejudice is not a sufficient basis to exercise [a judicial] discretion”, in this case to reinstate a proceeding: see AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [34].
Whether arguable prospects of success on judicial review application
During the hearing on 25 August 2025, as stated in paragraph 29(c) above, the applicant conceded there is no jurisdictional error in the Tribunal’s decision and added words to the effect of:
I just want to lodge an appeal to see if I can extend time in Australia
Again, the applicant’s answer suggests the applicant is attempting to use court procedures for the ulterior purpose of extending her stay in Australia. If so, this would be an abuse of the process of the Court.
Despite the applicant’s concession at the hearing on 25 August 2025, in the following paragraphs I address the grounds in the Originating Application.
Ground 1
The first five sentences in ground 1 up to and including the sentence “Therefore I would like to apply for protection in Australia” invite the Court to review whether the applicant is entitled to a protection visa in Australia. The role of the Court is limited to considering whether there is a jurisdictional error in the Tribunal’s decision. None of these sentences identify an error, let alone a jurisdictional error, in the Tribunal’s decision.
The applicant then claims that “the case officer failed to investigate the applicant’s claims by misconstruing the details set out in ss 36(2)(a), 36(2C), 36(3), 5H(1) of the Act and Schedule 2 to the Migration Regulations 1994”. First, this assertion lacks particulars. A “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 176 at [37]. Second, as stated in the Registrar Decision at [24], “this is a curious complaint for the applicant to make” given that she declined to provide written materials to the Tribunal in support of her claims and declined to appear at a hearing before the Tribunal to give evidence and present arguments.
The applicant then claims that “the officer erroneously construed the existence of the risk of life or significant harm to the applicants upon their return to Malaysia”. Again, first, this assertion lacks particulars. Second, as stated in the Registrar Decision at [25], “the Tribunal’s decision record contains an orthodox recitation, summary and application of [the applicable] law”.
Ground 1 does not identify an arguable case on judicial review.
Ground 2
The applicant asserts that “the AAT case officer failed to consider my claim or integer of a claim and made an unreasonable decision”. Again, this assertion lacks particulars. This ground does not identify an arguable case on judicial review.
Ground 3
The applicant “seeks for my claim to be given a second chance for me to provide more details to strighter [sic] my claims but not just to concern”. The meaning of these words is not clear. In any event, the ground does not identify an arguable case on judicial review.
Conclusion
In light of the above, I am not satisfied that it is “in the interests of justice to reinstate” (FBS18 at [50]) the Originating Application.
It follows that the Registrar Review Application should be dismissed.
Observations concerning abuse of process
The applicant, on her candid admissions at the hearing on 25 August 2025, appears to have endeavoured to continue (and perhaps commenced) the Originating Application “for a collateral purpose … of extending the period of the applicant’s stay in Australia”, which is an abuse of the process of this Court: see SZBNW v Minister for Immigration [2004] FMCA 436 at [16]; see also Roser v Immigration Review Tribunal (No 2) (1992) 29 ALD 182 at 186, which in turn relied on Williams v Spautz (1992) 174 CLR 509 at 529. I did not rely on this issue in reaching the conclusion in paragraph 56 above. However, I consider it appropriate to remind the applicant that findings of, or similar to, an abuse of process by the applicant in published judgments of Australian courts may have adverse consequences for her in the future, for example in relation to obtaining visas or in relation to her reputation. The applicant should give careful consideration to making further attempts to use court processes for the sole or predominant purpose of extending the period of her stay in Australia.
COSTS
At the conclusion of the hearing, I invited submissions on costs. Mr Djasmeini stated that, if the Registrar Review Application is dismissed, the applicant should be ordered to pay the first respondent’s costs in the sum of $550. The applicant did not oppose this order. The amount sought by Mr Djasmeini is reasonable. I will make this order.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 9 September 2025
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