DHM23 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 408

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DHM23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 408

File number(s):

MLG 2350 of 2023

Judgment of:

JUDGE GOSTENCNIK

Date of judgment:

24 March 2025

Catchwords:

MIGRATION – protection (subclass 866) visa – application for review of Registrar’s decision under s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – where Tribunal dismissed application pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) – where the Tribunal confirmed its decision to dismiss the application – where Registrar summarily dismissed judicial review application pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – where application for review of Registrar’s decision made out of time – whether extension of time ought be granted – no real prospect of success – application for extension of time refused – application dismissed

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256(1)

Migration Act 1958 (Cth) ss 5H(1), 36(2), 36(2)(a), 36(2C), 36(3), 425, 426A(1), 426A(1A)(a), 426A(1A)(b), 426A(1E), 426B(5)

Migration Regulations 1994 (Cth) sch 2

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 13.13(a), 17.05(2)(g), 21.02, 21.02(1), 21.02(2)

Cases cited:

AYT16 v Minister for Immigration and Border Protection [2017] FCA 252

BQQ15 v Minister for Home Affairs [2019] FCAFC 218

DHM23 v Minister for Immigration and Multicultural Affairs and Anor [2025] FedCFamC2G 87

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Mentink v Minister for Home Affairs [2013] FCAFC 113

Parker v The Queen [2002] FCAFC 133

Porter v Ghasemi [2021] FCAFC 144; 286 FCR 556

SZNYE v Minister for Immigration and Citizenship [2010] FCA 500

SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319

SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86

Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579

Division:

Division 2 General Federal Law

Number of paragraphs:

43

Date of last submission/s:

6 March 2025

Date of hearing:

7 March 2025

Place:

Melbourne

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Ms T Weir

Solicitors for the First Respondent:

HWL Ebsworth Lawyers

Counsel for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 2350 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DHM23

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GOSTENCNIK
DATE OF ORDER:	24 MARCH 2025

THE COURT ORDERS THAT:

1.The oral application made by the applicant on 7 March 2025 to extend the time within which an application for review of a Registrar’s decision summarily dismissing the applicant’s judicial review application lodged on 26 December 2023 may be made is dismissed.

2.The application for review of the Registrar’s decision lodged on 18 February 2025 is dismissed.

3.The applicant pay the first respondent’s costs fixed in the sum of $2,100.00.

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

JUDGE GOSTENCNIK

INTRODUCTION

1. By application lodged on 26 December 2023, the applicant sought judicial review of a decision of the former Administrative Appeals Tribunal (Tribunal) made on 24 November 2023, confirming an earlier decision made on 8 November 2023 dismissing his review application pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (Act) (as then in force). The review application concerned a decision of a delegate of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made on 22 May 2020 refusing the applicant a protection visa.

2. In a Response to the applicant’s claim for final orders lodged on 31 January 2024, the first respondent relevantly sought an order that the judicial review application 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). On 16 December 2024, Registrar Cummings made orders relevantly listing the first respondent’s summary dismissal application for hearing on 22 January 2025.

3. By order made on 22 January 2025, the Registrar summarily dismissed the applicant’s judicial review application, and ordered the applicant pay the first respondent’s costs in the amount of $4,189.38. The Registrar delivered ex tempore reasons for his decision, concluding that the judicial review application had no reasonable prospects of success. Subsequently the Registrar produced a written version of his reasons: see DHM23 v Minister for Immigration and Multicultural Affairs and Anor [2025] FedCFamC2G 87.

4. On 18 February 2025, the applicant applied to the Court for review of the Registrar’s decision pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and r 21.02 of the Rules. The application was made outside of the time prescribed by r 21.02(1) - the last day for making the application within time was 29 January 2025. The review application lodged by the applicant did not specify that an extension of time was sought, but at the hearing of the matter on 7 March 2025, I gave leave to the applicant to apply orally for an extension of time, a course that was not opposed by the first respondent. The first respondent does not otherwise consent for the time within which the application must be made to be extended.

5. For reasons explained below, I have decided to refuse to extend time.

   BACKGROUND

6. The applicant is a citizen of Malaysia who first arrived in Australia on 24 May 2016: Court Book (CB)63. On 6 November 2019, some three and a half years after his arrival, the applicant applied for a Protection (Class XA) (Subclass 866) visa: CB1-CB18. On 22 May 2020, the applicant was refused a protection visa because the delegate considered the applicant did not satisfy s 36(2) of the Act: CB35. On 15 June 2020 the applicant applied to the Tribunal for review of the delegate’s decision and provided an email address for correspondence, a postal address and a mobile telephone number: CB45-CB46.

7. By correspondence to the applicant, which was dispatched by email on 30 August 2023 to the email address specified in the review application, the applicant was requested to complete a 'pre-hearing information form': CB53 and return the completed form to the Tribunal within 7 days from receipt. He did not complete the form or otherwise respond to the Tribunal. On 16 October 2023, the applicant was invited to attend an in person hearing before the Tribunal scheduled for 1:30pm on 6 November 2023. The invitation was dispatched to the applicant’s email address specified in the review application: CB54-CB57 and requested the applicant complete a ‘Response to hearing invitation’ form. The invitation also informed the applicant that:

   ·if he is unable to appear as scheduled, or believes he will experience difficulty participating in the hearing, he would need to advise the Tribunal as soon as possible; and

   ·if he did not appear at the scheduled hearing, the Tribunal may:

   ·make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal; or

   ·dismiss his application for review without any further consideration of the application or the information before the Tribunal.

8. The applicant did not respond to this invitation by completing and returning the Response form, nor did he contact the Tribunal prior to the scheduled hearing.

9. On 30 October 2023 and 3 November 2023, the Tribunal sent SMS hearing reminders to the applicant at the mobile telephone number he specified in the review application: CB85. The applicant did not attend the scheduled hearing on 6 November 2023.

10. On 8 November 2023, the Tribunal dismissed the application for review pursuant to s 426A(1A)(b) of the Act. The Tribunal appears to have been satisfied that the applicant was properly invited to appear before the Tribunal, that the invitation had not been returned to sender, and that two SMS hearing reminders were sent to the applicant. The Tribunal reasoned that in circumstances where the applicant was on notice that the application may be dismissed if he failed to attend, as he did not respond to the hearing invitation or attend the scheduled hearing, it was appropriate to dismiss the application: CB72 at [1]-[6].

11. The applicant was notified of the dismissal decision by correspondence dated 9 November 2023 dispatched to the email address he specified in the review application: CB67-CB70. The correspondence also advised the applicant that he could seek reinstatement of his application in writing by 23 November 2023 setting out why he failed to appear at the hearing and provide any other information he wanted the Tribunal to consider when deciding whether the application should be reinstated. 

12. The applicant responded to the Tribunal’s notification email on 20 November 2023 in which he stated: “Please see the attached file, reply as per your requested (sic)”: CB75. The file the applicant attached was a completed ‘Response to hearing invitation’ form dated 20 November 2023, in which the applicant specified that he “will not participate in the hearing, and consent[ed] to the Tribunal making a decision on the papers without taking further steps to allow [him] to appear”: CB77-CB80.

13. On 24 November 2023, the Tribunal confirmed its earlier decision to dismiss the application: CB84. The applicant was notified of that decision on 27 November 2023 and provided with a copy of the decision record by email: CB81-CB83. The Tribunal noted at [3]-[4] of the confirmation decision that the applicant:

    ·was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s 426B(5) of the Act;

    ·was advised that reinstatement of the application could be sought within 14 days of receiving notice of the dismissal statement and that a failure to apply for reinstatement within the 14-day period would result in confirmation of the dismissal decision; and

    ·sent an email to the Tribunal which it received on 20 November 2023 attaching a purported response to the hearing invitation, indicating the applicant did not want to attend the hearing and consenting to a decision on the papers.

14. The Tribunal reasoned at [4] of the confirmation decision that the applicant’s eventual response to the hearing invitation had no utility, because the hearing had been held two weeks earlier and the applicant did not request a reinstatement of his application nor provide any reason why it should be reinstated. The Tribunal concluded at [5] that as the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. Accordingly, the decision under review was taken to be affirmed.

    PROCEEDINGS IN THIS COURT

15. By the earlier mentioned judicial review application made to the Court, the applicant sets out three grounds of review as follows (reproduced verbatim):

    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 extreme Muslims. My family and I shall facing harming from extreme Muslims if found that I return to Malaysia. if I have return to Malaysia may face harm or kill by extreme Muslims, 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), s 36(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.

16. As earlier noted, on 22 January 2025, the Registrar decided ex tempore to summarily dismiss the applicant’s judicial review application because it had no reasonable prospects of success. The applicant’s subsequent application for review of the Registrar’s decision pursuant to s 256(1) of the FCFCOA Act and r 21.02 of the Rules was made outside of the prescribed time frame. The application for review contains no grounds of application, and no application was made for an extension of time. The review application was fixed for hearing on 7 March 2025, to deal concurrently with the question whether an extension of time to make the review application should be granted and the merits of that application.

    CONSIDERATION

17. Section 256(1) of the FCFCOA Act permits a party to a proceeding in which a delegate has exercised any of the powers of the Court to apply to the Court for review of that exercise of power. Such an application must be made within the time prescribed by the Rules or within any further time allowed in accordance with the Rules. Rule 21.02(1) provides that an application for review of the exercise of a power by a Registrar must be made within 7 days. The Registrar exercised the summary dismissal power on 22 January 2025 and so the last day to lodge the review application was 29 January 2025. The application was made 20 days after the prescribed time frame lapsed. Rule 21.02(2) allows the Court to extend the time prescribed on any terms the Court thinks fit or with the consent of the parties to the proceeding. As already noted, the first respondent does not consent.

18. The broad discretion to extend time in r 21.02(2) of the Rules should be exercised in the context of the well-established principles guiding decisions whether to extend time in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176, 3 FCR 344 at 348-349. These non-exhaustive principles were cited with approval in Parker v The Queen [2002] FCAFC 133 at [6] as follows:

    ·     applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;

    ·     action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

    ·     any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

    ·     however, the mere absence of prejudice is not enough to justify the grant of an extension; and

    ·     the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

    See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36], [55]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144, 286 FCR 556 at 566, [40]; Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, 276 CLR 579 at [12].

    Extent of and explanation for delay

19. The length of the delay, some 20 days, is, as the first respondent accepts, short. The applicant did not provide any explanation for the delay in either the review application lodged or in the submissions filed pursuant to orders I made on 28 February 2025. During the hearing before me, the applicant said that he was told by the Registrar whose decision is the subject of the review application, that he had 28 days to apply for a review and to find a good lawyer. During the hearing I caused to be played in court the audio and video recording of the proceeding before the Registrar. It is clear from the recording that the Registrar did not tell the applicant he had 28 days within which to apply for a review. At the conclusion of the hearing after announcing ex tempore his decision and reasons, the Registrar addressed the applicant about his Bridging visa and told the applicant that the Bridging visa would expire in 28 days following the decision. Separately the Registrar responded to the applicant’s assertion that the judicial review grounds were prepared by a lawyer, indicating his surprise, since representation by a lawyer was not indicated on the application. The Registrar told the applicant that, if he had engaged a lawyer to prepare the judicial review application, the grounds specified were a template form of grounds familiar to the Registrar, and that there were likely other better lawyers available to assist him, but that that was a matter for the applicant. The exchange was translated through an interpreter during the hearing before the Registrar, and the applicant did not suggest before me that the translation was inaccurate so as to cause confusion.

20. The applicant provided no other explanation for the delay, and I am not persuaded the applicant’s explanation is an acceptable explanation for the delay. Ultimately an applicant is responsible for ascertaining any time limit that applies to the exercise of any review rights. Moreover, to the extent that the applicant might be taken to suggest that he was 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: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9]; SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [38]. Here there is nothing more.

21. Therefore, although the delay is for a short period, the absence of any satisfactory explanation for the delay weighs against the grant of an extension of time.

    Prejudice

22. The first respondent has properly accepted that he would not be materially prejudiced by the Court granting an extension of time but makes the valid observation that the mere absence of prejudice is not enough to justify the grant of an extension of time: Hunter Valley at 349. Accordingly, the first respondent contends, and I accept that this consideration weighs slightly in favour of granting an extension.

    Merits

23. The substantive application in respect of which an extension of time is sought is the application for review of the Registrar's decision. A review of a Registrar’s decision is undertaken de novo, and so the Court will decide for itself the merits of the matter that was before the Registrar. Here, the relevant matter was an application for summary dismissal of the applicant’s judicial review application because it had no reasonable prospects of success. As already noted, the Registrar dismissed the applicant’s judicial review application on that basis. The Court is not concerned with identifying or correcting any error by the Registrar. The conduct of the review requires the Court to hear the matter afresh. That means, in the instant case, that the Court needs to determine whether the applicant's judicial review application should be summarily dismissed pursuant to r 13.13(a), which was the matter the subject of the Registrar’s decision.

1. Turning then to the three grounds of review set out in the applicant’s judicial review application, and which are reproduced at [15] above. Although the judicial review application appears only to seek review of the Tribunal’s 24 November 2023 decision in which the Tribunal confirmed an earlier decision to dismiss the applicant’s merits review application, for the purposes of assessing the merits of the judicial review application, I will treat that application as also seeking judicial review of the Tribunal’s earlier dismissal decision (8 November 2023) made pursuant to s 426A(1A)(b) of the Act. The applicant filed written submissions on 4 March 2025, but these did not address the issue whether an extension of time to seek review of the Registrar’s decision should be granted, nor did it address the merits of the underlying judicial review application. Instead, the submission engages only with the merits of his protection visa claims.

2. It seems clear from the grounds of review and his written submissions that the applicant misunderstands the nature of the Tribunal’s decisions and the jurisdiction of this Court. By ground 1 the applicant is aggrieved by findings made by the “case officer” about the applicant’s protection claims and complains that the “case officer” did not investigate the applicant’s claims. The Tribunal dismissed the merits review application on 8 November 2023 pursuant to s 426A(1A)(b) of the Act after the applicant failed to appear before it. The Tribunal could not and did not by that decision engage with the applicant's protection visa claims because it was exercising power under s 426A(1A)(b) and not s 426A(1A)(a). Nor could the Tribunal engage with those claims when it confirmed its dismissal decision on 24 November 2023 as it was required to do by s 426A(1E). The complaint made by ground 1 is therefore about the delegate's decision. This Court does not have jurisdiction to consider the delegate's decision: ss 476(2)(a), 476(4)(a).

3. Consequently, ground 1 of the judicial review application cannot be made out and has no reasonable prospects of success.

4. By ground 2, the applicant would contend that the Tribunal made a jurisdictional error by affirming the delegate's decision and not considering the applicant's “claim or integer of a claim”, and made an unreasonable decision. As already noted, the Tribunal did not engage with the applicant’s claims because it determined, after the applicant failed to appear at the scheduled hearing to which he was invited and about which he was twice reminded, to exercise power under s 426A(1A)(b) of the Act. This is a power to dismiss the applicant’s merits review application without any further consideration of the application or information before the Tribunal. The power is exercisable if an applicant was invited under s 425 to appear before the Tribunal but did not appear when scheduled to do so: s 426A(1).

5. The Tribunal’s non-appearance decision: CB72 records that:

   ·the applicant was invited under s 425 of the Act to appear before the Tribunal on 6 November 2023 at 1.30 pm;

   ·the invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it;

   ·the applicant did not respond to the hearing invitation and did not attend the scheduled hearing;

   ·the Tribunal was satisfied that the applicant was properly invited to a hearing, and that he was sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing;

   ·in those circumstances, the Tribunal decided to dismiss the application without further consideration of that application or the information before the Tribunal.

6. The applicant does not dispute that he received the hearing invitation, but he said during the hearing before me that as the invitation stated he “should” attend rather than he “must” attend, he did not take the invitation seriously. The applicant said that had the invitation mandated his attendance at the hearing, he would have taken it more seriously. None of this establishes jurisdictional error, but in any event the invitation made clear that the applicant was being invited to attend a hearing because, having considered the material the Tribunal had to hand, it was “unable to make a favourable decision on this information alone”: CB55.

7. It is clear on the material in the CB that the preconditions for the Tribunal’s exercise of power under s 426A(1A)(b) of the Act had been met and the Tribunal’s non-appearance decision sets out brief but rational and intelligible reasons for exercising the power. I agree with the first respondent’s contention that dismissal of the applicant’s merits review application by the Tribunal which was subject to the prospect of reinstatement was a course that was plainly within the range of possible acceptable outcomes that are defensible in respect of the circumstances of this case. It was also, at the time the decision was made, more beneficial to the applicant than making a decision under s 426A(1A)(a), given the Tribunal's indication in the hearing invitation that it could not make a favourable decision on the information before it.

8. Turning then to the Tribunal’s decision made under s 426A(1E) of the Act. There is no dispute that the applicant was notified of the Tribunal's dismissal decision in accordance with s 426B of the Act by email on 9 November 2023: CB68. He was provided with a written statement setting out the Tribunal’s decision to dismiss the application, the reasons for the decision and the day and time the statement was made: s 426B(2). Notification of the dismissal decision was given to the applicant within 14 days of the decision being made, by a method specified in s 441A: ss 426B(5) and 441A(5). The decision was provided to the applicant with a statement describing the effect of ss 426A(1B) to (1F): CB73.

9. As noted earlier, in response to receiving the Tribunal’s 9 November 2023 email, on 20 November 2023 the applicant provided a completed 'Response to hearing invitation' form indicating that he did not wish to attend a hearing and consented to a decision being made on the papers: CB75-CB79. On the face of the applicant’s email and the attachment thereto, the applicant does not ask for reinstatement of the merits review application nor does he, as he was invited to do: CB69, set out why he failed to appear at the hearing. He also did not provide any other information he wanted the Tribunal to take into consideration in deciding whether the reinstatement application should be granted.

10. Where a review application is dismissed by the Tribunal because the applicant failed to appear at a hearing to which the applicant was invited, the applicant is notified of the dismissal decision in accordance with s 426B of the Act. If the applicant does not seek reinstatement of the application within the prescribed time, the Tribunal must confirm the decision to dismiss under s 426A(1E) of the Act. The Tribunal is not required by the Act to invite the applicant to a hearing or otherwise to hear from the applicant before confirming a dismissal decision: AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10].

11. I accept the first respondent’s contention that the applicant provided the Tribunal with only a completed ‘Response to hearing invitation’ form indicating he did not want to attend a hearing. The applicant did not indicate why he had not attended the hearing; he did not request in terms that his merits review application be reinstated, nor did he otherwise use language that might be understood as requesting reinstatement. For example, he did not request that the hearing be rescheduled, or for a new hearing date to be fixed. There is no attempt to provide any explanation for the applicant’s non-attendance which might itself have suggested he was requesting reinstatement. The applicant’s provision of a completed 'Response to hearing invitation' to the Tribunal on 20 November 2023 did not, without more, objectively amount to an application for reinstatement of his merits review application requiring the Tribunal to consider whether it was appropriate to reinstate the application. Consequently, as the applicant did not apply for reinstatement of the merits review application, the Tribunal was required to confirm the decision to dismiss the application by s 426A(1E) of the Act. And the Tribunal provided the applicant with the written statement of its decision and reasons for doing so: CB83-CB84.

12. The applicant noted in the Response to hearing form attached to his 20 November 2023 email that he did not want to attend the hearing and was content for the Tribunal to decide the application on the papers without taking any further steps to allow him to appear. The email was responsive to the Tribunal’s email advising the applicant of its dismissal decision. During the course of oral argument before me I raised with Counsel for the first respondent whether, given these facts, the applicant’s email and attachment should be read as a reinstatement application or otherwise, and whether the Tribunal was required to enquire with the applicant if he was making or intending to make a reinstatement application. The first respondent contended that neither proposition was correct. But even if either or both propositions are correct, the error made by the Tribunal in not treating the applicant’s 20 November 2023 email and attachment as a reinstatement application, or in not making any further inquiry whether the applicant sought reinstatement, is not material in the circumstances. This is because the applicant, by his attachment, consented to the Tribunal determining the merits review application on the papers without taking further steps to allow him to appear. The applicant did not provide any further information in support of his merits review application before informing the Tribunal that he did not wish to appear before the Tribunal, and consenting to a decision being made on the papers. The Tribunal had already indicated in its hearing invitation correspondence to the applicant that it could not decide the merits review application favourably to the applicant based on the information before it. The inevitable consequence of reinstatement would have been that the delegate’s decision refusing the visa grant would have been affirmed. Thus, if there is jurisdictional error by reason of these matters, the error is not material because there is no realistic possibility that the outcome could have been different: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [16].

13. For completeness, contrary to the applicant’s assertion in ground 2, the Tribunal did not affirm the delegate's decision. The delegate’s decision is taken to be affirmed by operation of the statute once the Tribunal confirmed its dismissal decision: s 426A(1F) of the Act.

14. It follows that ground 2 of the judicial review application cannot be made out and has no reasonable prospects of success.

15. By ground 3 the applicant pleads that he seeks his claims be given a second chance so that he can provide more detail. Ground 3 is in substance a plea for a merits review and does not and cannot disclose jurisdictional error. Ground 3 also has no reasonable prospects of success.

16. The applicant did not at the hearing of this application provide any other basis upon which it might be said that the Tribunal erred in respect of either of the decisions it had made. As the grounds sought to be advanced in the judicial review application have no reasonable prospects of success, and as I consider the Registrar correctly so concluded, the merits of the underlying application for judicial review and that of the application for a review of the Registrar’s decision to summarily dismiss that application, weigh strongly against the applicant.

17. Save for prejudice, the other matters considered weigh against the applicant’s extension of time application – chief amongst these is the absence of merit in the judicial review application. And as already noted, I also consider, for the reasons given earlier, the Registrar was correct in concluding that the judicial review application had no reasonable prospects of success and summarily dismissing the judicial review application under r 13.13(a) of the Rules.

18. The oral application for an extension of time to apply for a review of the Registrar’s decision made on 22 January 2025 to summarily dismiss the applicant’s judicial review application is refused. As the applicant’s application for review of that decision is made outside of the time prescribed, and as further time has not been allowed, the application is dismissed.

19. The first respondent sought an order for costs fixed in the sum $2,100.00 in the event the applicant was unsuccessful. The applicant did not advance any cogent reason why, in that event, an order for the costs sought should not be made. Having regard to the nature and duration of the proceeding and the work undertaken by the first respondent’s lawyers, I consider the amount sought to be reasonable and appropriate.

20. The applicant will be required to pay the first respondent’s costs fixed in the sum of $2,100.00.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

Associate:

Dated:       24 March 2025