EKK20 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1571
•26 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EKK20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1571
File number: SYG 2331 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 26 September 2025 Catchwords: MIGRATION – Application for review of a registrar’s decision – protection visa – whether the registrar erred in dismissing the application for judicial review – whether the underlying application has reasonable prospects of success – where the Administrative Appeals Tribunal found it did not have jurisdiction – application for review of a registrar’s decision dismissed – orders of the judicial registrar affirmed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256(1)
Migration Act 1958 (Cth) ss 66(2), 411(1)(c), 412, 494B(4), 494C(4)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13(a)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) rr 3.08(1), 23.08(1)(a)
Migration Regulations 1994 (Cth) reg 4.31(2)
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 5 September 2025 Place: Sydney Applicant: The applicant appeared by Webex Solicitor for the first respondent: Mr M Humphrey (MinterEllison) Second respondent: Submitting appearance, save as to costs ORDERS
SYG 2331 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EKK20
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
26 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application filed 31 July 2025 for the review of orders made by a judicial registrar on 22 July 2025 is dismissed.
2.The orders made by a judicial registrar on 22 July 2025 are affirmed.
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(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 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE MCCABE:
A registrar of this Court decided to dismiss an application for judicial review that had been filed by Mr EKK20. In doing so, the registrar was exercising the Court's summary judgment power in r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the 2021 rules). That rule permitted the Court to summarily dismiss proceedings where it was satisfied "the party prosecuting the proceeding … has no reasonable prospect of successfully prosecuting the proceeding".
The application for judicial review related to a decision of the Administrative Appeals Tribunal made on 15 September 2020. The Tribunal decided it did not have jurisdiction to review the earlier decision of the delegate to refuse Mr EKK20's application for a protection visa. The Tribunal said Mr EKK20 had filed his application for review after the prescribed appeal period had expired. The Tribunal found it did not have the power to review the applicant's case. It did not address any of the arguments about the merits of the applicant's claim for a protection visa.
Mr EKK20 filed an application for judicial review of the Tribunal's decision in this Court. His application set out three grounds of review which were directed to supposed failures on the part of the Tribunal to consider the substance of his claims for a protection visa. That application for review was referred to the registrar in the summary dismissal proceedings. The applicant now asks the Court to reconsider whether the proceedings should be summarily dismissed.
The Court has promulgated new rules since the date of the registrar's decision. The provisions governing this review are now found in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (the 2025 rules). The nature of the review remains the same under the 2025 rules. The application for review is made under s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Court conducts a 'de novo' review of the question before the registrar: r 3.08(1) of the 2025 rules. The question in this case relates to summary judgment which is now dealt with in r 23.08(1)(a). The question derived from that rule is: am I satisfied the applicant has no reasonable prospects of successfully prosecuting the proceeding or part of the proceeding?
I am satisfied the applicant has no prospects of success were he to be allowed to continue with his claim. I explain my reasons below.
THE DELEGATE'S DECISION AND THE APPLICATION TO THE TRIBUNAL
The essential facts in this case do not appear to be in doubt. The applicant entered Australia on a Vocational Education and Training Sector (subclass 572) visa in 2009. He applied for a Protection (Class XA) (subclass 866) visa in August 2016. He provided contact details to the minister's department at the time which were subsequently updated. Those contact details included a residential address and an email address.
On 22 March 2019, a delegate of the minister refused the application for a protection visa. The notification letter was sent by prepaid post to the applicant's registered residential address. The letter was returned to the sender unopened. (It turns out the applicant had moved from that address but he accepted at the hearing before me that he had not advised the department his address and contact details had changed.)
The department independently concluded there was a problem with the notification letter. It was decided the letter did not conform to the requirements in s 66(2) of the Migration Act 1958 (Cth) (the Migration Act) because the letter did not explain the applicant's review rights in a clear and understandable way. The minister does not rely on that letter, and I do not need to further consider its validity.
The department emailed the applicant at two addresses, including his registered email address, on 9 August 2019. A copy of that email is reproduced in exhibit one (the court book) at p 114. The email asked the applicant to update his contact details so they could send him correspondence. The applicant did not reply to the email. At the hearing, he said he had lost access to the addresses in question because his phone malfunctioned.
A fresh notification of refusal letter was sent by prepaid post to the applicant at his last residential address. That letter is dated 27 November 2019. It is reproduced in the court book at pp 115ff. The letter appears to comply with the requirements in s 66(2)(d)(ii) of the Migration Act. The information about review rights and the explanation of when the appeal period commenced were set out accurately and intelligibly on the second page of the letter under the heading 'Review Rights'.
Mr Humphrey, who appeared for the minister, explained:
·The delegate's decision was a 'Part 7-reviewable decision' because it was a decision to refuse a protection visa: s 411(1)(c) of the Migration Act;
·An application to the Tribunal seeking review of a Part 7-reviewable decision must be given in an approved form and within the prescribed period after the date of the notification of the decision: s 412 of the Migration Act. Section 412 does not give the Tribunal the discretionary power to extend the prescribed period for filing an appeal; and
·The prescribed period applicable in this case is 28 days: reg 4.31(2) of the Migration Regulations 1994 (Cth).
There are several steps involved in calculating the date of notification which triggers the commencement of the appeal period. Section 494B(4) of the Migration Act permits the minister to send a document by prepaid post to the last residential address that was provided to the minister. Where that mode of correspondence is used, s 494C(4) deems the addressee to have received the document 7 working days after the document was sent (assuming it was sent from an address in Australia to another Australian address). That means the minister is entitled to assume the correspondence has been received on and from that date.
In this case, the letter was dated and sent on 27 November 2019. A record of the letter being despatched on that date is reproduced in the court book at p 129. That means the letter was deemed to have been received by the applicant as of 6 December 2019. The 28-day appeal period commenced on that date. That period concluded in early January 2020.
The applicant told me he became aware of the adverse decision sometime later. He filed his application for review in the Tribunal on 4 July 2020. He was subsequently invited to explain whether the Tribunal had jurisdiction to conduct the review because it was filed out of time: court book at pp 150-151. The applicant did not respond to this invitation.
The Tribunal's 'no jurisdiction' decision was made on 15 September 2020. A brief set of reasons accompanied that decision: court book at p 162. The relevant passages are reproduced below:
2. As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: r.4.31(2) of the Migration Regulations 1994.
3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 27 November 2019 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4. The Tribunal finds that the applicant is taken to have been notified of the decision on 6 December 2019: s.494C of the Act, therefore the prescribed period to apply for review ended on 2 January 2020.
5. As the application for review was not received by the Tribunal until 4 July 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
THE APPLICATION FOR JUDICIAL REVIEW
Mr EKK20 filed an application for judicial review of the Tribunal's decision. He identified three grounds of review. In those grounds, he contended the Tribunal's decision is in error because it failed to grapple with his underlying claims for protection. He did not identify an error as such in the Tribunal's reasoning as to jurisdiction.
THE APPLICATION FOR SUMMARY DISMISSAL
As I have already explained, I must consider having regard to the material before me (which includes the material before the registrar) whether I am satisfied the applicant has no reasonable prospects of successfully prosecuting his appeal of the Tribunal's decision.
The Tribunal's decision relates to its jurisdiction. It did not engage with the substance of the applicant's claims. The Tribunal cannot be criticised for not addressing the claims or the evidence provided in support if it had no jurisdiction to entertain the review. It follows that the grounds of review as drafted are misconceived.
I asked the applicant to focus at the hearing on the Tribunal's decision as to jurisdiction. He was unable to identify any errors in that decision.
The Tribunal's decision was correct and inevitable. Once it was accepted a valid letter of notification had been despatched by post to the correct address, the notification was deemed to occur - and the appeal period commenced running - on an identifiable date. The 28-day appeal period had long since expired by the time the applicant approached the Tribunal in July 2020. The Tribunal had no discretion to extend that period. It followed it could not deal with the merits of the application or make any decision favourable to the applicant.
In those circumstances, it is clear the applicant has no reasonable prospects of succeeding in his application for judicial review. The Tribunal's decision is unimpeachable.
CONCLUSION
The applicant has sought review of a decision by a registrar to summarily dismiss the proceedings pursuant to r 23.08(1)(a) of the 2025 rules. That decision must be affirmed. I will hear from the parties as to costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 26 September 2025
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