DND22 v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1268
•30 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DND22 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1268
File number(s): MLG 2468 of 2022 Judgment of: JUDGE CORBETT Date of judgment: 30 July 2025 Catchwords: MIGRATION - Protection (Class XA) (subclass 866) visa - Application for judicial review – Application for review of Registrar decision - Non-appearance of applicant - Application dismissed Legislation: Migration Act1958 (Cth) ss 36(2)(a), 36(2)(aa), 65, 5H(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c), 13.13(a), 21.02(2)
Migration Regulations 1994 (Cth)
Cases cited: DND22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1119 Division: Division 2 General Federal Law Number of paragraphs: 18 Date of last submission/s: 30 July 2025 Date of hearing: 30 July 2025 Place: Melbourne Solicitor for the Applicant The applicant did not appear. Solicitor for the Respondents Ms C Lopez (HWL Ebsworth Lawyers) ORDERS
MLG 2468 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DND22
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
30 JULY 2025
THE COURT ORDERS THAT:
1.The application for review filed 15 July 2025 seeking to review the exercise of the registrar's power to summarily dismiss the proceeding be dismissed;
2.The orders made 24 June 2025 summarily dismissing the application for judicial review and for the payment of costs are affirmed; and
3.The applicant pay the first respondent's costs and disbursements of and incidental to the application for review, fixed in the sum of $1,178.10.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Revised from transcript)JUDGE CORBETT
These are the reasons for judgment delivered ex tempore on 30 July 2025, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor matters to reflect the intention of the Court.
The time is now 10.40am, and the hearing today was listed to commence by video-link at 10.00am and there is no appearance from the applicant. This is an application by the applicant for review of a Registrar's decision. The applicant originally sought judicial review of a decision of the second respondent (Tribunal) made on 17 October 2020. The Tribunal determined it did not have jurisdiction to review the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa (visa) under s 65 of the Migration Act 1958 (Cth) (Act).
The application for judicial review was filed with this Court on 31 October 2022, and by an amended response filed 4 June 2025, the Minister sought an order for summary dismissal of the application for judicial review pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
On 24 June 2025, a Registrar of this Court ordered that the applicant's application for judicial review filed on 31 October 2022 be summarily dismissed with costs. The Registrar found that the application had no reasonable prospects of success and delivered ex tempore reasons for his decision. Written reasons were then published (see DND22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1119).
On 15 July 2025, the applicant sought review of the exercise of power by the Registrar, and the time within which to make that application for review is fixed by r 21.02 of the Rules. An application for review must be made within seven days of the exercise of the power by the Registrar, and the review application in this case was made thirteen days late. Therefore, the applicant was required to apply for, and obtain an order extending time under r 21.02(2) of the Rules.
The applicant is a citizen of Malaysia and first arrived in Australia on 12 April 2016 on a Visitor visa.
On 27 February 2022, the applicant applied for the visa.
On 1 June 2022, a delegate of the Minister refused to grant the visa. The delegate was not satisfied that the applicant was a refugee as defined in s 5H(1) of the Act, and, therefore, was not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) and 36(2)(aa) of the Act.
On 4 July 2022, the applicant applied to the Tribunal to review the decision of the delegate. The time within which to make an application for review to the Tribunal is fixed by the Migration Regulations 1994 (Cth) at 28 days. The application for review filed by the applicant was late, and, therefore, the Tribunal did not have jurisdiction to entertain it.
The applicant then sought judicial review of the Tribunal’s decision. The decision of the Registrar to dismiss that application for judicial review was made on 24 June 2025. After the decision of the Registrar summarily dismissing the application for judicial review, the applicant filed an application for review of that decision. As indicated, that application was also out of time.
The application for review was listed for hearing by this Court on 21 July 2025. Notice of the listing was given to the applicant at the last known address for service, which was an email address. Due to the pseudonym given to the applicant and the need for anonymity in respect of the applicant's name, the email address is not identified in these reasons, however, I note that it is the email address to which the notice of listing was sent. It is also the address which was given to the registry by the applicant.
On 24 July 2025, my chambers sent an email to the applicant indicating that the matter would be heard today, in Melbourne, in person. On 24 July 2025, at 6.43pm, the applicant sent an email to my chambers indicating that he would like to change the venue of the hearing. In that email, the applicant wrote (verbatim):
…I lodged my Application for Review to Adelaide Registry but I was then asked to lodge it to Melbourne registry. I am currently residing in Adelaide. Due to financial constraints I would not be able to travel to Melbourne and attend the hearing before Judge Corbett on 30 July 2025. Please consider my request as this matter is of utmost importance to me…
On 25 July 2025, my associates wrote to the applicant indicating that any application to transfer a proceeding must be made in writing and made in accordance with the Rules. The email further said that the Court would consider granting the applicant leave to appear via video-link for the hearing this morning at 10.00am. There was no response from the applicant to that email.
On Tuesday 29 July 2025, the solicitor for the Minister indicated via email that there would be no opposition to the hearing of this application by video-link. On 29 July 2025, my associates sent a link to the applicant at his last known email address, notifying the applicant of the meeting link, meeting number and video address for the hearing today. The email also set out the procedure that would be followed at the hearing this morning. Similarly, on 29 July 2025, the solicitor for the Minister sent an email to the applicant confirming that the hearing today would be by video-link and sending a copy of the Court's email with the video-link details to the applicant. The email from the Minister's solicitor said that there must be an appearance and if the applicant could not appear, then he must advise the Court as soon as possible, and if there was no appearance, the application for judicial review and the application for review of the Registrar's decision would be dismissed for non-appearance, and that the Minister would seek an order for costs.
Notwithstanding that correspondence, the applicant has not appeared today and has not contacted the Court with any explanation as to why he has failed to appear. In the circumstances, I am satisfied that the applicant has been given sufficient notice of the time and place of this application and that he is aware that the matter would proceed today in respect of his application for review. I am satisfied that the applicant has failed to appear, despite sufficient notice of the hearing this morning. In the circumstances, I am prepared to dismiss the application for review of the Registrar's decision pursuant to r 13.06(1)(c) of the Rules.
ORDERS
The application for review filed 15 July 2025 seeking to review the exercise of the Registrar's power to summarily dismiss the proceeding be dismissed.
The orders made 24 June 2025 summarily dismissing the application for judicial review and for the payment of costs are affirmed.
The applicant pay the first respondent's costs and disbursements of and incidental to the application for review, fixed in the sum of $1,178.10.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 11 August 2025
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