Sandhu v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 716
•19 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sandhu v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 716
File number(s): MLG 1442 of 2021 Judgment of: JUDGE CORBETT Date of judgment: 19 May 2025 Catchwords: MIGRATION – Skilled Independent (Points-Tested) (Subclass 189) visa - Application for review of a Registrar’s decision – Application for an extension of time to seek review – Rule 21.02(2) – Whether adequate explanation for delay – Consideration of merits – Allegation of fraud perpetrated by Migration Agent – Allegation unsupported by evidence – No particulars of jurisdictional error – No jurisdictional error apparent – No reasonable prospects of success – Application for review dismissed with costs. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 254, 256, 256(1)
Migration Act 1958 (Cth), ss 360, 362B(1E), 362B(1A)(b), 476, 476(1), 476(2)(a)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.13(a), 21.02(1), 21.02(2), 21.03(2), 21.04(1)
Migration Regulations 1994 (Cth), Sch 2, cls 189.222(1)(a), 189 223
Cases cited: AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
Australian Securities and Investments Commission v Cassimatis [2013] FCA 641
FRA18 v Minister for Home Affairs [2019] FCCA 2287
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2024) 418 ALR 152; [2024] HCA 12
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Singh v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 889
Spencer v Commonwealth of Australia (2010) 241 CLR 118
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of last submission/s: 8 April 2025 Date of hearing: 8 April 2025 Place: Melbourne Solicitor for the applicants The first applicant appeared self-represented, on behalf of the second, third and fourth applicants Solicitor for the Respondents Ms C Oppel, Australian Government Solicitor ORDERS
MLG 1442 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDEEP KAUR SANDHU
First Applicant
AMANDEEP SINGH SANDHU
Second Applicant
HIMMATVEER SINGH SANDHU (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
19 MAY 2025
THE COURT ORDERS THAT:
1.The name of the second respondent is amended to Administrative Review Tribunal.
2.Pursuant to r 7.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the application for judicial review filed 28 June 2021 is amended to seek a writ of mandamus directed to the second respondent, requiring it to determine the applicants’ application for review according to law.
3.The time within which to bring the Review Application filed 12 March 2025 is extended under r 21.02(2)(a) of the Rules to 12 March 2025.
4.The Review Application filed 12 March 2025 be dismissed; and
5.The first and second applicants pay the first respondent’s costs and disbursements of and incidental to the Review Application fixed in the sum of $1,500.00.
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 CORBETT
The applicants seek to review the exercise of power by a Registrar of this Court on 28 February 2025. The Registrar ordered that the applicants’ application for judicial review filed 28 June 2021 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 (Cth) (Rules).
The applicants sought judicial review of a decision of the second respondent (Tribunal) made 31 May 2021 in which the Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the first applicant a Skilled Independent (Points-Tested) (Subclass 189) visa (visa). The nominated occupation was an Early Childhood (pre-primary school) Teacher.
The Minister sought summary dismissal of the application for judicial review pursuant to r 13.13(a) of the Rules on the grounds that the application for judicial review had no reasonable prospects of success. The Registrar upheld that application and summarily dismissed the application for judicial review with costs.
On 12 March 2025, the applicants filed an application for review of the Registrar’s decision under s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) (Review Application). The time within which to file the Review Application is within 7 days of the Registrar’s exercise of power (r 21.02(1) of the Rules). The Review Application was not filed within the time required by the Rules. The Court may extend that time if it is the interests of justice to do so.
For the reasons that follow, the time within which to file the Review Application is extended to 12 March 2025. The application for judicial review filed 28 June 2021 will also be amended to seek an order for the issue of a writ of mandamus. However, the Review Application is dismissed with costs.
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court on 8 April 2025 and marked exhibit “R1”.
BACKGROUND
The applicants are citizens of India.
On 6 June 2019, the first applicant applied for the visa. The second applicant is the husband of the first applicant and their two children are the third and fourth applicants (CB 12-29). On 1 December 2021, a Registrar of this Court ordered that the first applicant be appointed litigation guardian for the third and fourth applicants.
On 24 February 2020, a delegate of the Minister refused to grant the visa on the basis that the first applicant did not provide evidence of a suitable skills assessment with her application and did not satisfy the criteria for the visa with proof of competent English language skills. These are primary criteria that must be satisfied pursuant to Sch 2, cls 189.222(1)(a) and 189.223 of the Migration Regulations 1994 (Cth) (Regulations) (CB 33, 41). Because the first applicant was refused the visa the second, third and fourth applicants were also refused visas as eligible family members.
On 6 March 2020, the applicants applied to the Tribunal for review of the delegate’s decision (CB 49).
On 1 April 2021, the Tribunal sent the applicants an invitation to attend a hearing to be conducted via telephone on 5 May 2021 (CB 63-4).
The invitation also attached a fact sheet of information regarding Tribunal hearings and advised that:
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
Two SMS reminders of the scheduled hearing were sent to the first applicant’s nominated mobile telephone number on 28 April 2021 and 4 May 2021.
On 5 May 2021, the hearing was held and none of the applicants appeared (CB 72-4). The Tribunal attempted to contact the applicants three times on the day (CB 72).
On 14 May 2021, the Tribunal exercised its discretion to dismiss the application for non-appearance pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth) (Act). The Tribunal gave notice of the dismissal of the application in writing on 14 May 2021 together with notification that they may apply for reinstatement within 14 days (CB 77-9). The applicants did not seek reinstatement of their application within the 14-day period. On 31 May 2021, the applicants were notified that the Tribunal confirmed its decision to dismiss the application for review (s 362B(1E) of the Act) (Decision) (CB 83-4).
PROCEEDINGS IN THIS COURT
Application for Judicial Review
On 28 June 2021, the first applicant filed an application for judicial review in this Court (CB 2-6). The application set out the following three grounds for review (CB 4):
1. I am submitting the application for judicial review to my application for skilled migration visa 189 th, was refused based on not providing skills assessment.
2. The case member at AAT didn’t give me sufficient time to prepare my case along with relevant docum
3. I would request to contest the decision of the case member to affirm with the decision of immigration give me sufficient time to get in documents.
The application was supported by an affidavit affirmed by the first applicant on 25 June 2021. The affidavit simply stated that the application was “true in nature” and that the documents supporting the application were also “true in nature”.
In a Response filed 29 November 2021, the Minister sought summary dismissal of the application for judicial review on the basis that the application for judicial review had no reasonable prospects of successfully prosecuting the proceeding.
On 7 November 2024, a Registrar of the Court ordered that the applicants file and serve any amended application for judicial review, written submissions and any further affidavit material to be relied upon in opposing the Minister’s summary dismissal application by 12 December 2024. The applicants did not file any further materials.
On 28 February 2025, there was a hearing before a Registrar of the Court held via video link. The Registrar summarily dismissed the application for judicial review pursuant to r 13.13(a) of the Rules and ordered the applicants to pay the Minister’s costs of the proceeding.
On 12 March 2025, the applicants filed the Review Application supported by an affidavit affirmed by the first applicant on the same day. The affidavit attached the orders made by the Registrar on 28 February 2025. The grounds of review are as follows (verbatim):
1. The decision of the Federal Circuit Court shall be reviewed based on jurisdictional error.
2. I should be allowed to appeal the decision of the Federal Circuit Court to Federal Court of Australia.
3. The appellant should be granted 189-visa.
On 31 March 2025, the parties were notified by chambers that the Review Application was listed to be heard before this Court at Melbourne on 8 April 2025.
Application for an Adjournment
On 3 April 2025, the first applicant sent an email to chambers requesting an adjournment of the scheduled hearing due to her poor health. Attached to the email was a certificate dated 3 April 2025 from a physiotherapist that stated that the first applicant was:
…suffering from a medical condition and requires medical leave from 03/04/2025 To: 09/04/2025. I recommend that Sandeep avoid travel until further medical review and clearance are obtained.
The Minister opposed the adjournment request on the basis that no medical reason had been provided to demonstrate the first applicant’s inability to participate at the hearing in person or on the scheduled date. The Minister proposed that the hearing be conducted as scheduled with leave of the Court to allow the first applicant to appear via video link.
On 4 April 2025, the Court informed the first applicant that a formal request for an adjournment must be made by way of filing an Application in a Proceeding, supported by evidence in the form of an affidavit. On the same day, the first applicant emailed an unfiled affidavit that attached the same medical certificate. The affidavit requested that the hearing scheduled for 8 April 2025 be adjourned “for a period of four (4) weeks”. The affidavit was filed with the Court on 7 April 2025.
On 7 April 2025, chambers provided the first applicant a video link to use on the day of the scheduled hearing.
On 8 April 2025, the first applicant appeared via video link, self-represented and was assisted by an interpreter fluent in the Punjabi and English languages. Ms Oppel, solicitor, appeared in person on behalf of the Minister.
The first applicant renewed her application for an adjournment of the hearing because she was suffering from “pain in back”, strain in neck” and was not “physically fit”. The first applicant sought an adjournment of the hearing of the Review Application for 3-4 weeks. The second applicant did not appear and no explanation was given as to his availability to appear or attend.
The Minister opposed the proposed adjournment. It was submitted that there was no proper medical evidence stating that the first applicant was unfit to proceed only that they were unfit to travel pending further medical review. The Minister could not identify any prejudice apart from delay to the orderly and efficient use of Court resources and timely resolution of applications for review.
The Court was not prepared to grant the application for the adjournment as it was not in the interests of justice to do so. The Review Application was commenced on 12 March 2025 and r 21.03(2) of the Rules requires that the application must be listed for hearing as soon as possible and, unless it impractical to do so, within fourteen days after the date of filing. The Review Application was listed for hearing on 31 March 2025 and the date for hearing scheduled eight days later. There was no satisfactory medical evidence that necessitated an adjournment, and the only evidence produced, from a physiotherapist, suggested that the first applicant was simply unfit for travel. The necessity to travel was removed by allowing the first applicant to appear by video link. The first applicant did not identify any other medical condition that compromised her ability to appear or make submissions remotely, noting that the first applicant appeared at the video link hearing before the Registrar on 28 February 2025. The application for an adjournment was refused.
The Court confirmed at the hearing that the applicants had received a copy of the Court Book prepared on behalf of the Minister and the Minister’s outline of written submissions dated 26 November 2024.
Application to Amend Application for Judicial Review
To exercise the Court’s jurisdiction under s 476 of the Act to determine whether a remedy should be granted in respect of a migration decision made by the Tribunal, the applicants are required to seek an order of a writ of mandamus directed to the Tribunal requiring it to determine the application according to law. The Court noted that the application for judicial review filed by the applicants sought only an order to quash the Decision and did not seek a writ of mandamus requesting the matter be remitted to the Tribunal or any injunctive relief. An application that fails to seek a writ of mandamus or prohibition, or an injunction, has the result of not properly invoking the Court’s jurisdiction pursuant to s 476(1) of the Act (see FRA18 v Minister for Home Affairs [2019] FCCA 2287 at [15] and [21]). It is understandable that the first applicant may not have appreciated the importance of this technicality, and noting that the solicitors for the Minister have not raised this technicality in the written submissions made on behalf of the Minister (and did not oppose the amendment), the Court will order that the application filed 28 June 2021 is amended so as to seek a writ of mandamus. The Court has the power to do so, even on its own motion (see Singh v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 889 [44]– [51]). The Court finds that it is in the interests of justice and the overarching purpose of the Rules to dispense with non-compliance and amend the application for the just disposition of this proceeding.
Application for an Extension of Time
The Court informed the first applicant that the time within which to seek review of the exercise of power by a Registrar is within seven days of the exercise of power (r 21.02(1) of the Rules). In this case, the Review Application was filed seven days late.
As the first applicant was self-represented, the Court explained that the applicants must seek an extension of time within which to bring the Review Application (r 21.02(2) of the Rules). In doing so, it was explained that she needed to disclose reasons for the delay as no formal application or explanation via affidavit has been filed with the Court. The first applicant submitted that she “did not have any advice what to do next”.
The principles upon which an extension of time may be granted by a Court undertaking judicial review of administrative decisions were stated in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley) at [349] per Wilcox J and confirmed by the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [12] and [13]. The factors that may be considered are not limited.
In this case, the delay in filing the Review Application was seven days. Ms Oppel for the Minister could not point to any prejudice suffered by the Minister if an extension of time was to be granted, nor opposed the granting of an extension.
However, the mere absence of prejudice alone is not a sufficient reason to grant an extension of time (see Hunter Valley at 349). There is also no onus upon the Court to inform the applicants of the time limits prescribed by the Rules. It is a matter for litigants themselves to ensure that they are aware of their rights of review and the applicable time limits. Ignorance is no excuse (see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]).
Nevertheless, the Court is mindful that the applicants were self-represented. It would not be in the interests of justice or the efficient use of resources to deny the applicants an opportunity to be heard in circumstances where the delay in filing was only seven days. Therefore, the Court is prepared to extend the time within which to bring the Review Application to the date upon which it was filed with the Court (12 March 2025).
Having granted an extension of time, the Rules provide that the review of an exercise of power by a Registrar must proceed by way of a hearing de novo (r 21.04(1) of the Rules).
SUMMARY DISMISSAL APPLICATION – MINISTER’S SUBMISSIONS
Ms Oppel, on behalf of the Minister, relied upon the outline of written submissions filed on 26 November 2024 and which were relied on at the hearing before the Registrar. Ms Oppel also addressed each of the grounds of review in the application for judicial review.
In relation to ground one, Ms Oppel submitted that this ground does not identify any jurisdictional error in the Decision. In so far as it refers to the visa being refused due to the first applicant’s failure to provide a skill assessment; this was not the basis upon which the Tribunal reached the Decision. The Tribunal affirmed the delegate’s decision to refuse the visa due to the applicants’ non-appearance at the hearing and failure to seek reinstatement. When the applicants failed to apply for reinstatement, the Tribunal confirmed the dismissal pursuant to s 362B(1E) of the Act. It was submitted that if by this ground of review the applicants are taking issue with the delegate's decision, this Court has no jurisdiction to review a delegate decision pursuant to s 476(2)(a) of the Act. The Minister submitted that this ground must fail and has no reasonable prospects of success.
In relation to ground two regarding sufficient time to prepare the case and ground three that the applicants should be granted the visa, the Minister submitted that there is no basis to the claims that the Tribunal erred in failing to give time to the applicants to prepare their case, or arguable error by the Tribunal in making the Decision.
The Minister submitted that the applicants had more than a year’s notice to prepare their case from the date of lodging their application (6 March 2020) to the invitation sent from the Tribunal under s 360 of the Act on 1 April 2021 (CB 64–6). The applicants then had a further month to attend a hearing listed for 5 May 2021. In the invitation letter, the Tribunal notified the applicants that the Tribunal “considered the material before us but we are unable to make a favourable decision on this information alone” (CB 64). The invitation further stated that the applicants should provide all documents to the Tribunal at least seven days prior to the scheduled hearing (CB 65). By that invitation, the applicants were on notice that the hearing was their opportunity to provide submissions to make a case. The hearing invitation was sent to the applicants’ nominated address, and the applicants do not maintain that there was a problem with receiving notice. Moreover, the Minister submitted that the Tribunal sent two reminders via SMS, noting that the Tribunal is not required by law to do so (CB 76). No documents were provided by the applicants to the Tribunal despite having ample opportunity to do so, nor did the applicants seek an adjournment of the hearing in order to request more time to prepare. The applicants did not seek to contact the Tribunal to explain why they could not appear at the scheduled hearing. Therefore, the Minister submitted grounds two and three had no reasonable prospects of success and the Review Application should be dismissed with costs.
SUMMARY DISMISSAL APPLICATION – APPLICANTS’ SUBMISSIONS
The Court explained that it only has jurisdiction to review the Decision for jurisdictional error, not the merits of the Decision. It was explained that a jurisdictional error is a material or substantial error of fact or a mistake at law. The first applicant needed to demonstrate to the Court that there was an arguable reason of some kind to set aside the Decision and if there was an arguable reason then her application for review would proceed to a final hearing. However, if the claim for review has no reasonable prospects of success, then the application should be dismissed without a final hearing.
The Court remined the first applicant that the reason the application to the Tribunal was dismissed by the Tribunal was because she did not appear at the scheduled hearing. When asked why she did not attend the hearing the first applicant replied, “this time there was covid”. The first applicant also said that the family’s financial situation was not good due to lack of work at this time. The first applicant requested that the Court allow the applicants more time to provide documentation to support their claims – “more months to finalise their immigration process and to build their lives in Australia”. The first applicant submitted that they were a hardworking family who could be an asset to this country.
When asked why no documents were submitted to the Tribunal the first applicant responded, “when [we] arrived in this country, [we] had a hope [we] would live there and be a citizen”. The first applicant claimed that their Migration Agent was a fraud who had wronged other clients. Due to limited financial funds at that time, they were unable to seek further legal advice from a different Migration Agent - “whatever she was saying I was doing all of these things, but she did not guide me properly”.
The Court took the first applicant to the application to the Tribunal lodged on 6 March 2020 (CB 50-1). The Court observed that there is no Migration Agent listed as acting at that time and that all correspondence was requested to be sent to the first applicant. The first applicant submitted that the fraud was what happened to them, she said– “he started coming on Facebook and he was not putting his code or number on any documents”.
The Court then directed the first applicant to the originating visa application (CB 20-1). The first applicant confirmed with the Court that the contact details of the authorised recipient of correspondence was the first applicant. When asked how the first applicant became aware of the Decision, the first applicant did not directly answer, only stating that “they were only messaging us not emailing us”. When asked if the applicants received the letters from the Tribunal (CB 61): the invitation to attend the scheduled hearing (CB 64), the email notification of the Decision (CB 77) and the Fact Sheet attached to that notification of Decision (CB 79), the first applicant confirmed that they had received all of those correspondences but was “unsure if it is in her email”.
When directed to the application for judicial review made to this Court (CB 1-5), the first applicant submitted that she did not prepare that documents and that the signature did not belong to her, rather belonged to the Migration Agent. The Court asked if this Migration Agent had a name to which the first applicant reiterated that no name or lawyer code was provided to them, which is how they came to know that she was a fraud. The Court informed the first applicant that there is no mention of being misled or defrauded in the grounds of review or her affidavit filed with this Court (CB 8-9). The Court asked if this was mentioned before the Registrar at the hearing held on 28 February 2025, the first applicant replied no – “I cannot say they had done any mistake…[we] were just doing what the Migration Agent said, she did everything on [our] behalf”. The Court asked if the first applicant had any supporting documents or emails from the Migration Agent to support these claims, noting that a brief adjournment could be granted if that would assist her to find any documents. The first applicant submitted that there were emails in her computer to support her claims but would require at least 2-3 weeks to “collect them all” as she cannot travel at the moment due to health reasons and would like to commence treatment for her health. The first applicant could not explain why it would take 2-3 weeks to extract emails and documents from her computer or why documents to support her claim could not be produced within a short period of time or why these documents were not previously produced.
The first applicant was unable to explain any of the grounds of review in her application to the Court and was unable to assist to identify any jurisdictional error in the Decision.
SUMMARY DISMISSAL APPLICATION – MINISTER’S REPLY
The Minister addressed the first applicant’s oral submissions submitting that the first applicant has confirmed that she has received all correspondence from the Tribunal, notably the invitation to attend the scheduled hearing (CB 64).
It was submitted that the first applicant has provided no explanation to the Tribunal as to why she could not attend the hearing despite receiving the letter to attend the hearing before the Tribunal. The first applicant’s entire case appears to be based on the complaint that she was receiving poor advice, and she alleges she was a victim of fraud. The application for judicial review has been on foot for four years and the applicants have never mentioned in the originating application or affidavit any allegation of fraud. The applicants were invited to amend their application and make submissions by order of the Court on 1 December 2021 which they did not elect to do. Further, there is no evidence of any Migration Agent acting for the applicants in the visa application or the Review Application at any time and no allegations of fraud were raised before the Registrar or identified in the affidavit filed in support of the Review Application.
The first applicant’s claims to have documentary evidence in the form of email correspondence from this alleged Migration Agent, however her request for 2–3-week adjournment in order to provide such evidence should be refused as she was clearly capable of producing medical evidence to support her request for an adjournment on 3 April 2025. The only reason to seek additional weeks was to print the documents out which does not seem necessary. In all the circumstances, the Minister opposes any further adjournment on the basis that the applicants have had ample opportunity to provide evidence and raise their claims.
Finally, the fact that the Tribunal hearing was listed for telephone hearing during a period of covid does not explain the applicants’ inability to respond or appear via telephone on the date scheduled for the hearing.
CONSIDERATION
Section 256 of the FCFCOA Act permits a party to a proceeding to apply to the Court for review of the exercise of a delegated power by a Registrar. The power to delegate functions of the Court to the Registrars, (including the power to summarily dismiss an application) is to be found in s 254 of the FCFCOA Act.
If a party seeks to review a decision of a Registrar within the time permitted by the Rules, then the Court must conduct a hearing de novo and reconsider the application again applying the principles for assessing whether the applicants’ claims have no reasonable prospects of success.
In AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426 her Honour Judge Given said at [55]-[56]:
[55] The established principles relating to summary judgment can be summarised as follows, by reference to Spencer v Commonwealth (2010) 241 CLR 118 and Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 :
(a) the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding;
(b) the assessment of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument;
(c) despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution; and
(d) the determination of a summary dismissal application does not require a mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. A critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial is required.
[56] The relevant principles make clear that in considering the Minister’s summary dismissal application, the Court is not required to determine whether the decision of the Tribunal is affected by jurisdictional error. Rather, the task is to consider whether the case raises a “real or genuine dispute” as to any material fact that might reasonably be resolved in the applicant’s favour: AJB19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FedCFamC2G 368 at [33] , citing Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at [132] per Gordon J, Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [4] to [6] per Finkelstein J and J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581 at [6] per Pagone J.
The discretion to summarily dismiss an application must be exercised with caution because it is an order made at a preliminary stage in proceedings, in the absence of a full and complete factual matrix and argument (see Spencer v Commonwealth of Australia (2010) 241 CLR 118 and Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473). However, what is required is “a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial.” (see Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46], per Reeves J).
In this case, a critical examination of the available materials shows that there is no real question of law or of fact to be determined that might reasonably be resolved at a final hearing in the applicants’ favour. There are no apparent errors of law or fact or other material error by the Tribunal that requires the application for judicial review to proceed to a final hearing. The applicants did not appear at a scheduled hearing by telephone before the Tribunal on 5 May 2021. The applicants were sent reminder SMS messages twice before the scheduled hearing date to the mobile telephone number that they nominated (CB 51 and 76). On the day of the hearing the Decision record records that the Tribunal attempted to phone the applicants on the number provided three times without success. The Tribunal then waited until 14 May 2021 before dismissing the application for review (CB 78). The applicants did not seek to contact the Tribunal in the interim or respond to the Tribunal’s attempts to contact them.
The applicants provided the same contact details to the Court in their application for judicial review as they did to the Tribunal. The first applicant acknowledges receipt of the Tribunal letter of invitation on 1 April 2021 (CB 64-6), the Decision and Fact Sheet. No application for reinstatement was made to the Tribunal and no proper explanation for non-appearance has been given to the Tribunal or this Court. The belated and unsubstantiated claims of fraud by an unidentified migration agent simply do not pass scrutiny and are not supported by any documentation. The applicants have been given several opportunities to articulate such a claim and have not done so.
The grounds of review relied on by the applicants in the application for judicial review do not identify any jurisdictional error by the Tribunal in making the Decision to dismiss the application for review for non-appearance.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 (LPDT), the plurality said at [3]:
[3]…Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
No error of the kind identified by the Court in LPDT is apparent in this case. The grounds of review do not identify error for the reasons identified in the submissions of the Minister and those grounds of review have no reasonable prospects of successful prosecution at a final hearing. The Court has also scrutinised the Decision and information before the Tribunal for error and none is apparent. No proper or credible explanation has been given for non-appearance at the Tribunal hearing and there was no engagement by the applicants with the process of review before the Tribunal. There was no attempt to place additional information before the Tribunal to displace the delegate’s decision or to satisfy the criteria for the visa. The Tribunal did not deny the applicants’ procedural fairness or fail to give them a reasonable opportunity to be heard. The application for judicial review made to this Court has no reasonable prospects of successful prosecution and the Registrar was correct to summarily dismiss this proceeding on 28 February 2025. The Review Application is dismissed.
COSTS
The solicitor for the Minister sought the Minister’s legal costs and disbursements of an incidental to the Review Application fixed in the sum of $1,500.00 which is fair and reasonable in the circumstances of this application and are to be paid by the first and second applicants, in addition to the costs ordered by the Registrar on 28 February 2025.
OTHER MATTERS
Due to the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the ‘Administrative Review Tribunal’. Orders will be made to that effect.
ORDERS
The name of the second respondent is amended to Administrative Review Tribunal.
Pursuant to r 7.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the application for judicial review filed 25 October 2023 is amended to seek a writ of mandamus directed to the second respondent, requiring it to determine the applicants’ application for review according to law.
The time within which to bring the Review Application filed 12 March 2025 is extended under r 21.02(2)(a) of the Rules to 12 March 2025.
The Review Application filed 12 March 2025 be dismissed.
The first and second applicants pay the first respondent’s costs and disbursements of and incidental to the Review Application fixed in the sum of $1,500.00.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 19 May 2025
SCHEDULE OF PARTIES
MLG 1442 of 2021 Applicants
Fourth Applicant:
MAHTAB SANDHU
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