DXY25 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1542
•10 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXY25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1542
File number(s): SYG 1083 of 2025 Judgment of: JUDGE MARQUARD Date of judgment: 10 September 2025 Catchwords: PRACTICE AND PROCEDURE – Application for matter to be held in abeyance – interpretation of provisions of the Administrative Review Tribunal Act 2024 (Cth)- consideration of the interests of administration of justice -application refused Legislation: Administrative Review Tribunal Act2024 (Cth) ss 55, 106
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 rr 1.05, 1.08
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Cases cited: LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227
SXNC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 390
Division: Division 2 General Federal Law Number of paragraphs: 15 Date of hearing: 10 September 2025 Place: Sydney Applicant: Applicant appeared in person assisted by a Mandarin Interpreter Counsel for the First Respondent: Mr A Keevers of Counsel appeared for the First Respondent Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting Appearance Save as to Costs ORDERS
SYG 1083 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXY25
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MARQUARD
DATE OF ORDER:
10 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The hearing before me at 10:15 am on 16 September 2025 is vacated.
2.The matter is listed for final hearing at 10:15 am on 24 September 2025 before me.
3.The applicant must file and serve the following documents by 4pm on 19 September 2025:
(a)any amended application properly particularising each ground of review relied upon;
(b)any affidavit evidence to be relied upon;
(c)a written outline of submissions;
(d)a list of authorities.
4.The first respondent must file and serve the following documents by 4pm on 22 September 2025:
(a)any affidavit evidence to be relied upon;
(b)a written outline of submissions, and provide a version of the same in Microsoft Word format by way of email to the Chambers of Judge Marquard - [email protected] – on the date of filing;
(c)a list of authorities;
(i)is in electronic searchable format (PDF);
(ii)is paginated; and
(iii)has an index with each entry bookmarked.
(d)an affidavit of service, details of which will be set out in the written order.
THE COURT NOTES THAT:
A.A. Any directions inconsistent with these orders are vacated.
B.B. A hard copy of the findings made at the directions hearing will be provided to the parties.
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 typographic, clerical or grammatical errors (r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04 of the Rules.]
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE MARQUARD
On 3 April 2025, the applicant filed an application for judicial review of a decision of the Administrative Review Tribunal (the Tribunal), the second respondent. The decision of the Tribunal affirmed a decision of the Department of Immigration and Citizenship, as delegate of the first respondent, to refuse to grant the applicant a protection visa.
The Court listed the matter for a hearing on 16 September 2025.
On 4 September 2025, the solicitors for the first respondent in an email to the Court requested that the hearing of this matter be adjourned until the determination by the Federal Court of an appeal by the first respondent of LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227 (LLR24).
At the request of the solicitors for the first respondent, a Directions Hearing was held in order that the first respondent’s application for abeyance be heard.
A Directions Hearing was held in the Sydney Registry of this Court on 10 September 2025 by means of Webex. The applicant appeared as a litigant in person and the first respondent was represented by Mr Keevers of Counsel instructed by Sparke Helmore Lawyers. A Mandarin interpreter assisted the Court.
Mr Keevers submitted that the first respondent sought the adjournment of the hearing in the matter until the Full Court of the Federal Court determined the Minister’s appeal in LLR24, as the matter raises similar legal issues.
As the applicant was a litigant in person, I explained to the applicant that the first respondent was seeking an adjournment of the matter until the judgment in the appeal of LLR24 in the Federal Court had been delivered. I explained that the application for abeyance was sought in order that legal principles could be formulated in the Federal Court as the matter on appeal had some relevance to the applicant’s matter. I noted that an abeyance meant that there could be a substantial delay before the applicant’s matter was heard in this Court. The applicant indicated that she consented to the first respondent’s application for abeyance. She indicated that she had work rights on her bridging visa.
I have considered the request for an abeyance carefully. On the one hand, there is a public interest in ensuring that higher courts determine important legal issues, such that precedent can develop and there can be consistency in decision-making. On the other hand, the particular circumstances of the case needs to be considered, as well as the overarching purpose of the Court.
I note that the appeal in LLR24 was lodged on 3 September 2025, however there is no hearing date for the matter and no expedition has been granted. I have checked the Commonwealth Courts Portal as of today’s date and there are no listing dates in respect of the appeal.
I have considered the submissions from Counsel that it is expected that the matter will be listed in the next two appeal periods commencing November 2025 and March 2026, but there is also some uncertainty in this process and it may be some considerable time before the appeal is allocated a date, noting the volume of migration cases in the Federal Court. As was observed by Stewart J in SXNC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 390 at [24], in refusing a request for abeyance in that case there is ‘obvious uncertainty’ as to when an appeal will take place and its outcome.
Sections 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provide that the overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
These provisions are reflected in r 1.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (GFL Rules). Notes to the GFL Rules state that the parties to a proceeding must conduct the proceeding in a way that is consistent with the overarching purpose and in doing so should avoid undue, delay, expense and technicality. The GFL Rules should be interpreted and applied in a way that best promotes the overarching duty. The Court has the power make any order that it considers appropriate in the interest of justice r 1.08 of the GFL Rules. Given the uncertainties of the progress of the matter through the Federal Court, I am not persuaded that the matter should be stayed in order to await the outcome of the appeal of LLR24 to the Federal Court.
I have also considered the applicant's interest in this process. While the applicant has not expressed an objection to abeyance, the applicant is a litigant in person and it can be difficult to fully grasp all the nuances of the legal process.
Finally, the provisions under consideration in this matter, including ss 55 and 106 of the Administrative Review Tribunal Act2024 (Cth) (ART Act) are new. The ART Act came into effect in October 2024. There is of course utility in superior courts making determinations on new statutory provisions. However, as pointed out by Counsel the facts in this case are not entirely consistent with the facts in LLR24. Considering the volume of cases which it is predicted will emerge from the ART on appeal, with varying factual circumstances, it is important for matters to get heard such that jurisprudence can develop.
It is my view that it is in the interests of the administration of justice for this matter to proceed expeditiously as is required by the GFL Rules and the FCFCOA Act. For the reasons I have discussed, I refuse the first respondent’s application for abeyance. Considering there has been some delay due to the interlocutory process, I am amenable to a later hearing date.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard. Associate:
Dated: 10 September 2025
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