GXX25 v Minister for Immigration and Citizenship (No 2)

[2025] FedCFamC2G 1576

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GXX25 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1576

File number(s):

SYG 2134 of 2025

Judgment of:

JUDGE KAUR-BAINS

Date of judgment:

29 September 2025

Catchwords:

MIGRATION – judicial review of Tribunal’s decision to confirm the decision to dismiss the application to the Tribunal for review of delegate’s decision after the applicants failed to appear at the hearing and failed to apply for reinstatement of the application within the prescribed period – de novo review of Judicial Registrar’s decision ordering summary dismissal on the basis that the applicants have no reasonable prospects of successfully prosecuting their application for judicial review – finding that the applicants have no reasonable prospects of successfully prosecuting their application for judicial review – application dismissed

Legislation:

Administrative Review Tribunal Act 2024 (Cth), s 99

Federal Court of Australia Act 1976 (Cth), s 31A

Federal Circuit and Family Court of Australia Act 2021 (Cth), s 143

Migration Act 1958 (Cth), ss 65, 368, 368C(5) and 368C(6)

Federal Court Rules 2011 (Cth), r 26.01

Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2025 (Cth), rr 3.08(1), 23.08 and 23.08(1)

Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2021 (Cth), rr 13.13, 13.13(a), 21.02(1), 21.02(2) and 21.04(1)

Cases cited:

Allison v Murphy [2021] FCAFC 232

Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34

BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307

GXX25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1233

Hamod v New South Wales [2011] NSWCA 375

MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392

Spencer v Commonwealth of Australia (2010) CLR 118; [2010] HCA 28

SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146

Division:

General Federal Law

Number of paragraphs:

47

Date of hearing:

25 September 2025

Place:

Sydney

First Applicant:

In person

Second Applicant:

In person

Solicitor for the First Respondent:

Mr M Fisher of The Australian Government Solicitor

Solicitor for the Second Respondent:

No appearance

ORDERS

SYG 2134 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GXX25

First Applicant

GXY25

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KAUR-BAINS
DATE OF ORDER:	29 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The time to apply for review of Judicial Registrar Cummings’ decision dated 1 August 2025 is extended.

2.The application for judicial review is amended to apply for judicial review of both decisions of the Second Respondent dated 2 June 2025 and 1 July 2025.

3.In addition to the orders made by Judicial Registrar Cummings dated 1 August 2025, the Applicants pay the First Respondent’s costs fixed in the sum of $189.38.

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 KAUR-BAINS

1. On 1 August 2025, a Judicial Registrar of this Court (Judicial Registrar), in the exercise of delegated power dismissed the applicants’ 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) (2021 GFL Rules), on the basis that the claim for relief had no reasonable prospect of success (Registrar’s Decision). By an application filed on 10 August 2025, the applicants seek a review of the Registrar’s Decision for the reasons set out in the first applicant’s affidavit affirmed on 7 August 2025, where the first applicant stated at [9] (as per original):

   I request Honourable Federal Circuit Court of Australia to consider my circumstance And Mistake made by the Federal Circuit Court Registrar and Administrative Review Tribunal and allow my appeal to be heard and make decision in my favour.

2. Pursuant to r 21.02(1) of the 2021 GFL Rules, the application for review of the exercise of a power by a Registrar must be made within 7 days of the day on which the power was exercised, but that time may be extended pursuant to r 21.02(2) of the 2021 GFL Rules. The applicants, at no time have had legal representation, were two days out of time in making the application for review of the Registrar’s Decision. The applicants’ explanation for the delay in filing the application outside the 7-day timeframe was that they sought assistance from a friend to prepare their application for review and the friend was too busy to assist by the deadline, causing them to be late in making the application for review. In light of the applicants’ explanation, I grant the applicants’ an extension of time to apply for review of the Registrar’s Decision.

   Application for review of exercise of power by Judicial Registrar

3. Pursuant to r 3.08(1) of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2025 (Cth) (2025 GFL Rules) (formerly r 21.04(1) of the 2021 GFL Rules), this Court’s review of an exercise of power by a Registrar is by way of a hearing de novo. That is, for such hearings to be conducted afresh and not concerned with correcting error in the decision-making process of the Registrar. The validity of the exercise of delegated judicial power by a Registrar of this Court is dependent upon this principle and the right for parties to seek review of the exercise of delegated judicial authority: Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34 (Allsop CJ, Markovic and Colvin JJ) at [2]; BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307 (Burley J) at [11]; Allison v Murphy [2021] FCAFC 232 at [11].

4. Accordingly, I consider afresh the Minister’s application for summary dismissal of the application for judicial review under r 23.08 of the 2025 GFL Rules. For the reasons set out below, I find the applicants do not have reasonable prospects of successfully prosecuting the proceedings. In those circumstances, the application for judicial review should be summarily dismissed.

   BACKGROUND

5. The applicants are citizens of India. The first applicant is the wife of the second applicant. They were married on 22 May 2015 (Court Book (CB) 15).

6. On 28 June 2019, the first applicant applied for a Protection (Class XA) (Subclass 866) visa (visa) on her own behalf and on behalf of the second applicant (CB 14 to 47), claiming to fear for their lives, serious injury, sexual violation and slavery in Punjab, India due to widespread violence by gangsters, and being a poor struggling family who did not have protection and were subject to gangster threats (CB 36 to 38). The second applicant only qualifies for the visa if the first applicant so qualifies. The applicants were assisted in making the application for a protection visa by a registered migration agent, Ms Rashmere Bhatti (Ms Bhatti) of Migrate Australia Consultant (CB 24).

7. On 2 July 2019, the Department of Home Affairs (Department) acknowledged that the applicants’ visa application had been assessed as a valid application (CB 49 to 53). Ms Bhatti provided a further statutory declaration in support of their visa application (CB 58 to 65).

8. On 27 October 2020, the Department sent Ms Bhatti a letter inviting the applicants to provide additional information as to the claims (Department invitation), which inter alia included the following (CB 86):

   Request Detail

   Other requirements

   I have started considering your application for a Protection visa.

   I now invite you to provide further information regarding the following claims in your application and other matters that I may take into consideration in assessing your claims:

   1. Your statement of protection claims are extremely vague and lack substantiating details such as dates and locations. No further evidence has been provided in support of your protection claims.

   Please provide a more detailed statement of what happened to you in India and include specific details.

   Please provide any further comments, additional information and supporting evidence in relation to your claims for protection.

   4. If it is found you cannot return to Punjab province in India, I will need to consider whether a real chance of persecution applies to all areas of India as required by s5J(1)(c) of the Migration Act 1958 (the Migration Act). I will also need to consider if you can relocate to another area of India in accordance with s36(2B)(a) of the Migration Act.

   Country information shows that Indian domestic law provides for freedom of internal movement, foreign travel, emigration and repatriation, and the government generally respects these rights. In addition, India’s internal migration flows are substantial, while there may be factors which limit your options for internal relocation.

   Please provide reasons as to why you could not relocate in India to places such as Delhi or Mumbai.

   If you are unable to provide more information about your claims or copies of documents, please provide a detailed explanation of why you cannot provide them. If you are unable to provide documents, please also provide details of the efforts you made to obtain them.

   Any information that you provide in response to this letter will be taken into account in the decision on your application.

   Please note that a decision on your application may be made on the information in your application and in any response to this letter, and you may not be given another opportunity to provide more information about your claims.

9. In response to the Department invitation, Ms Bhatti provided an undated letter (Agent’s Letter), enclosing the statutory declaration of the first applicant dated 28 June 2019, an affidavit of the second applicant’s father dated 26 June 2019 and two photographs (CB 87 to 91). The Agent’s Letter responded to the Department invitation’s specific request for reasons as to why the applicants could not relocate in India to places such as Delhi or Mumbai, and stated that “the stark reality is that extreme gender inequality exists in India on an unimaginable scale which places women in extreme vulnerability and precarious and irregular livelihoods, especially in cities as compared to rural villages were kinsman are available to support”. The Agent’s Letter submitted that the first applicant could not relocate because of gender inequality and crimes against women, she did not have her own source of income and depended on her husband financially (CB 87 to 88).

   Delegate’s decision

10. The delegate was not satisfied that the first applicant would face harm upon return to India based on the lack of credible and detail evidence from the first applicant regarding her claim that she feared harm from gangsters in the Punjab province (CB 107). The delegate found the first applicant’s claims to be “extremely vague, with no specific dates or locations included” and gave little weight to the photographs provided as they appeared staged and the inconsistent evidence about the number of occasions the applicants were attacked by criminal gangs (CB 106).

11. The delegate was satisfied that effective state protection is available to the first applicant in the receiving country and that the first applicant does not have a well-founded fear of persecution (CB 107).

12. On 31 March 2021, the delegate refused to grant the applicants the visas under s 65 of the Migration Act 1958 (Cth) (MigrationAct), on the basis that the applicants were not persons in respect of whom Australia has protection obligations nor members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations (Delegate’s Decision) (CB 98 to 110).

    Application to the Tribunal

13. On 12 April 2021, the applicants applied to the Administrative Appeals Tribunal (as it then was) for review of the Delegate’s Decision not to grant the applicants the visas with the assistance of Ms Bhatti (CB 111 to 113).

14. On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (Tribunal).

15. On 9 December 2024, the applicants submitted to the Tribunal a “Pre-hearing information” form (CB 124 to 127). In the form, the applicants requested that any hearing be held by video with the assistance of an interpreter in the Punjabi language and responded “NO. I WILL STICK TO THE INFORMATION PROVIDED” to the Tribunal’s invitation to the applicants to give any more information about their claims for protection, or any other reasons why they are afraid to return to their home country.

16. On 15 April 2025, the applicants submitted a “Change of Contact Details” form removing Ms Bhatti as their Tribunal contact and providing updated contact details (CB 131 to 133).

17. By letter to the first applicant dated 15 April 2025, the Tribunal invited the applicants to attend a Tribunal hearing on 30 May 2025 (CB 134 to 137). The invitation was re-sent to the first applicant on 24 April 2025 (CB 148). The Tribunal received no response to its hearing notices from the applicants (CB 155).

18. On 30 May 2025, the applicants failed to attend the Tribunal hearing (CB 149 to 152). The Tribunal attempted to contact the applicants on the mobile number supplied by the applicants, however there was no response from the applicants (CB 155 and 165).

    TRIBUNAL’S DECISION

19. On 2 June 2025, the Tribunal dismissed the applicants’ application for review under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) for the applicants’ failure to appear at the Tribunal hearing (Tribunal’s Dismissal Decision) (CB 154 to 156). The Tribunal was satisfied that the applicants received appropriate notice of the hearing details and considered that the applicants had disengaged with the review process ([6] and [7] of its reasons).

20. By letter dated 2 June 2025 sent to the first applicant’s nominated email address, the Tribunal advised the applicants that a reinstatement of the application could be sought within 28 days of receiving the Tribunal’s Dismissal Decision and a failure to apply for reinstatement within the period would result in confirmation of the Dismissal Decision (CB 152 to 153).

21. On 2 July 2025, the Tribunal confirmed its decision to dismiss the application for review, as the applicants did not apply for reinstatement of the application for review within the 28-day period (Tribunal’s Confirmation Decision) ([5] of its reasons). The Tribunal noted that it was aware an application for judicial review was filed in this Court on 18 June 2025 by the applicants and considered that an application for judicial review to this Court was not an application for reinstatement made to the Tribunal ([4] of its reasons).

    APPLICATION FOR JUDICIAL REVIEW AND PROCEDURAL HISTORY

22. Rather than filing an application for reinstatement in the Tribunal, on 18 June 2025 the applicants filed an application in this Court seeking judicial review of the Tribunal’s Dismissal Decision dated 2 June 2025. The following grounds for judicial review were raised in the application (as per original):

    1.Administrative Review Tribunal had not acted in the best interest of the applicant as mentioned in affidavit attached here with . including Annexture-A and B

    2.I contacted the Review Tribunal on the number provide that day, but no one responded.

23. The affidavit of the first applicant filed on 18 June 2025 which enclosed the Tribunal’s Dismissal Decision at Annexure A and the Delegate’s Decision at Annexure B stated the following (as per original):

    2.Administrative review Tribunal had dismissed to grant Protection Visa Application Subclass 866 .I attached such decision herewith as Annexure A.

    3.The decision I appealed into Administrative review Tribunal was the decision of Department of home affairs refusing protection Visa application. I attached its decision as Annexure B.

    4.Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue)

    5.I would like to confirm that I have provided all required documentation and have met every condition necessary for the this  application.

    6.We have submitted all relevant documents as per eligibility criteria by department

    7.I sincerely request that you give due consideration to the compelling and compassionate circumstances. May I request you to look into the grounds that when I lodged this Application.

    8.So I meet my all criteria I think I am become a victim of a procedure fairness issue/matter here as Administrative Appeals Tribunal   has an error in my decision. This is not fair work by any department while making a decision and department or tribunal should be fair to make it decision and must look into all necessary aspects.

24. From reading the judgment of Judicial Registrar Cummings in GXX25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1233, Judicial Registrar Cummings noted at [15] of the judgment that when the application for judicial review came to his attention, he listed the matter for a first return date on 26 June 2025 as he was concerned that the applicants may not understand they needed to apply for reinstatement of their application in the Tribunal. This approach is to be commended. On 26 June 2025, the second applicant told Judicial Registrar Cummings that the applicants did not wish to apply for reinstatement in the Tribunal but instead wished to pursue judicial review proceedings in this Court.

25. On 10 July 2025, the Minister in his response sought orders that the application for judicial review be dismissed by summary dismissal pursuant to r 13.13 of the 2021 GFL Rules.

26. On 1 August 2025, pursuant to r 13.13(a) of the 2021 GFL Rules, Judicial Registrar Cummings summarily dismissed the applicants’ application for judicial review of the Tribunal’s Dismissal Decision on the basis that the applicants’ claim for relief had no reasonable prospect of success, and ordered the applicants pay the Minister’s costs fixed in the sum of $4,000.

27. On 10 August 2025, the applicants filed in this Court an application for review of the Registrar’s Decision and the corresponding orders dated 1 August 2025. The applicants sought the following orders in their application for review (as per original):

    1.An order that the application for leave to appeal be heard by Register Cummings  of this court

    2.An order that subject to any contrary direction of the court, the application for leave to appeal be heard community with or alternatively , immediately before the appeal described in the draft notice of appeal field with this application

    3.A direction that the parties with part 36 of the Federal court rules 2011.

    4.An order that the order of the Federal Circuit court be quashed

    5.A write mandamus directed to the Administrative review Tribunal (ART) or Minister requiring them to determine the Appellant’s application according to law.

    6.An injunction restraining the Minister by himself or by his department, officer’s delegates or agents from relying upon the decision of the ART.

    7.Any appropriate relief Honourable Court may think so fit.

    8.Costs

28. In support of the application for review, the applicants filed an affidavit of the first applicant affirmed on 10 August 2025 which annexed the orders of Judicial Registrar Cummings dated 1 August 2025 as annexure AB1 and stated the following (as per original):

    1I am the Appellant and am making this Judicial Review Appeal against the judgement of Federal Circuit Court of Australia made on 1 August 2025 at Adelaide.

    2I have applied for Visa subclass – 866 visas on 28 June 2019

    3My visa was refused by the Department of Home Affairs on 31 March 2021.

    4I filed review application with the Administrative Review Tribunal to seek review of Decision pursuant to relevant provisions of the Migration Act to refuse 866 visa by The Department.

    5The Administrative review  Tribunal affirmed decision of delegate of Department of Home Affairs on 2 June 2025.

    6I have applied for the judicial review of the Administrative review  Tribunal in the Federal Circuit Court of Australia

    7The Hon Federal Circuit Court Registrar Cumming  dismissed judicial review application on 01 Aug 2025 Annexed herewith an Annexure – AB1 a judgement of Registrar Cumming .

    8Federal Circuit Court Registrar Order to file in the Federal Court of Australia for your Consideration.

    9I request Honourable Federal Circuit Court of Australia to consider my circumstance And Mistake made by the Federal Circuit Court Registrar and Administrative Review Tribunal and allow my appeal to be heard and make decision in my favour.

1. On 14 August 2025, the proceedings were docketed to my list and set down for hearing before me.

   PROCEEDINGS BEFORE THE COURT

2. The applicants appeared at the hearing before me as litigants in person, assisted by a Punjabi interpreter. Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [37]), I explained to the applicants the role of the Court in undertaking a review of the Registrar’s Decision and considering the judicial review application, being a review afresh. I ensured the applicants were in possession of all relevant documents, namely the Court Book, the applications and the Minister’s written submissions. Before the hearing started the interpreter interpreted the Minister’s submissions for the applicants. The applicants did not provide any written submissions.

   Documents sought to be relied upon by the applicants

3. I accepted the first applicant’s application filed on 18 June 2025, on the basis that it set out the first applicant’s grounds for judicial review. I also accepted two affidavits provided by the first applicant, being the affidavit deposed on 12 June 2025 on the basis that it set out an additional ground for review and submissions in relation to the reason the first applicant was seeking review of the Tribunal’s Dismissal Decision, and the affidavit affirmed on 7 August 2025 on the basis that it set out submissions in relation to the reason the applicants were seeking review of the Registrar’s Decision. The applicants also made oral submissions.

   Minister’s documents

4. The Minister relied on his written submissions filed on 11 July 2025 and 16 September 2025 and tendered the Court Book which was marked Exhibit R1. The Minister also made oral submissions.

   Amendment of the application for judicial review

5. I raised with the parties that the applicants needed to seek judicial review of the Tribunal’s Confirmation Decision, which review had not been sought. The parties agreed and leave was granted to amend the application for judicial review accordingly.

6. In this case I need to determine whether summary judgment ought to be granted. To that end, I first set out the relevant legal principles applicable to whether or not to grant summary judgment.

   RELEVANT LEGAL PRINCIPLES AS TO SUMMARY JUDGMENT

7. Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides:

   143 Summary judgment

   …

   (2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

   (a)the first party is defending the proceeding or that part of the proceeding; and

   (b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

   (3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

   (a)       hopeless; or

   (b)       bound to fail;

   for it to have no reasonable prospect of success.

   (4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.

   …

8. Rule 23.08(1) of the 2025 GFL Rules provides:

   23.08 Summary judgment

   (1)The Court may order that judgment be given against a party if the Court is satisfied that:

   (a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

   (b)the proceeding is frivolous or vexatious; or

   (c)no reasonable cause of action is disclosed; or

   (d)the proceeding is an abuse of the process of the Court; or

   (e)the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

9. When considering a summary dismissal application, the Court is not required to determine whether the Tribunal’s decision contained jurisdictional error, but rather whether the application for judicial review filed by the applicants has no reasonable prospect of success. Section 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) are similar to the provisions applied in this Court as set out in [34] and [35] of this judgment.

10. In Spencer v Commonwealth of Australia (2010) CLR 118; [2010] HCA 28, the High Court regarding the phrase “no reasonable prospect of successfully prosecuting the proceeding” said that no paraphrase of that phrase should be adopted to explain its operation. Hayne, Crennan, Kiefel and Bell JJ stated at [60]:

    Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. …

11. As said in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392 (Mortimer J (as her Honour then was)) at [19]: “like other judicial guidance in relation to statutory discretions expressed in an unconfined way, or expressed by reference to broad considerations, it is critical that such guidance not be taken as exhaustive. Nor must it be applied as if it is a code”.

    CONSIDERATION

    Grounds in the judicial review application

12. I accept the Minister’s submissions that the applicants’ grounds fairly understood and extracted from the application dated 18 June 2025 and the first applicant’s affidavit deposed 18 June 2025 are as follows (as per original):

    Ground 1

    Administrative Review Tribunal had not acted in the best interest of the applicant as mentioned in affidavit attached here with . including Annexture-A and B

    Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue)

    So I meet my all criteria I think I am become a victim of a procedure fairness issue/matter here as Administrative Appeals Tribunal has an error in my decision.

    Ground 2

    I contacted the Review Tribunal on the number provide that day, but no one responded.

    Ground 3

    This is not fair work by any department while making a decision and department or tribunal should be fair to make it decision and must look into all necessary aspects.

    Ground 1

13. In Ground 1, the applicants contended that the Tribunal failed to act in their best interests and suggested that they were victims of procedural unfairness. I find that there was no procedural unfairness because for the reasons that follow the Tribunal properly discharged its duty and powers:

    (a)On 15 April 2025, as set out at [17] of this judgment, the Tribunal invited the applicants to attend a Tribunal hearing, which invitation was sent to the applicants’ nominated email address as identified in “Change of Contact Details” Form provided by the applicants on 15 April 2025. The invitation stated that the hearing was to be by video conference via Microsoft Teams and provided a video link. The invitation made it clear that if the applicants did not appear then the case might be dismissed because of non-appearance, but it could be reinstated if the Tribunal member considered it appropriate to do so and the application was made within 28 days after receiving notice of the dismissal.

    (b)The applicants did not appear at the Tribunal hearing. Pausing there, the applicants said to me that they were aware of the Tribunal hearing date but did not attend because their baby was sick. The applicants also admitted that they made no attempt to contact the Tribunal to inform it of this matter.

    (c)The Tribunal had power under s 99 of the ART Act to dismiss the application if two preconditions were satisfied, being the applicants’ failure to appear and the Tribunal being satisfied that the applicants received appropriate notice of the date, time and place of the Tribunal hearing. The Tribunal’s Dismissal Decision correctly identified that the Tribunal was satisfied as to the two preconditions and accordingly exercised power to dismiss the application under s 99 of the ART Act.

    (d)On 2 June 2025, the Tribunal sent to the applicants at their nominated email address notification of the decision to dismiss their application and expressly stated that they could seek reinstatement of the application for review before the Tribunal but had to do so by 30 June 2025. As apparent from the Registrar’s Decision, the applicants acknowledged to Judicial Registrar Cummings on 26 June 2025, that they were aware that they needed to make a reinstatement application to the Tribunal by 30 June 2025, but did not wish to do so and wanted instead to seek judicial review of the Tribunal’s Dismissal Decision. Therefore, the applicants were clearly on notice as to their rights for reinstatement and it was a matter for them if they chose not to pursue those rights.

    (e)As no reinstatement application was made in the Tribunal, pursuant to s 368C(5) of the Migration Act, the Tribunal “must confirm the decision to dismiss the application, by written statement under s 368 of the Migration Act. Further, s 368C(6) provides that if the Tribunal “confirms the decision to dismiss the application, the decision under review is taken to be affirmed”. Therefore, in the circumstances of this case, the Tribunal was correct in its decision dated 1 July 2025, to confirm the decision to dismiss the applicants’ application for review.

14. Accordingly, I find that there are no reasonable prospects of success in relation to Ground 1.

    Ground 2

15. The applicants admitted that despite Ground 2 stating that they contacted the Tribunal on a number provided on the day of the Tribunal hearing and no-one responded, in fact the truth is they did not contact the Tribunal. In light of the applicants’ admission, I find there are no reasonable prospects of success in relation to Ground 2.

    Ground 3

16. For the reasons outlined at [40(a)] to [40(e)] of this judgment, I find that there are no reasonable prospects of the applicants succeeding in relation to Ground 3, which alleges that the Tribunal was not fair in its decision. To the extent Ground 3 attacks the Delegate’s Decision, I have no jurisdiction to review the Delegate’s Decision and accordingly there are no reasonable prospects of the applicants succeeding with that aspect of Ground 3.

    CONCLUSION

17. On the basis set out above, I am satisfied that the applicants have no reasonable prospects of establishing jurisdictional error in either of the Tribunal’s decisions (assuming in the applicants’ favour that this Court has jurisdiction in relation to the Tribunal’s Dismissal Decision, which I doubt). Therefore, I would make the same orders made by Judicial Registrar Cummings, which were as follows:

    1.The application for judicial review be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.

    2.        The applicants pay the first respondent’s costs fixed in the sum of $4,000.

18. Therefore, rather than vacate the above orders and remake the orders, I allow those orders to stand.

    COSTS

19. At the hearing before me, I heard the parties’ submissions as to costs. The Minister sought $189.38 in costs, in addition to the $4,000 ordered by the Judicial Registrar.  Given the procedural history of this matter, I allow Order 2 of Judicial Registrar Cummings’ order to remain and order an additional sum of $189.38 in costs.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.

Associate:

Dated:       29 September 2025