AFS21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2147

1. These proceedings relate to an application for judicial review of a tribunal decision to affirm a decision to refuse the Applicant a protection visa.
2. That application was summarily dismissed by a Registrar of the Court by reason of a lack of reasonable prospects of success.
3. The Applicant now seeks review of the Registrar's decision.
4. These reasons explain why the application must be dismissed and the costs ordered.

1. The Applicant is a citizen of Indonesia who arrived in Australia on 1 May 2017 as a visitor visa holder.
2. On 14 July 2017, the Applicant applied for a Protection (class XA) (Subclass 866) visa which was subsequently rendered invalid on 19 October 2017 and as such he became an unlawful citizen on 24 November 2017.
3. On 5 January 2018, the Applicant lodged a further Protection (class XA) (Subclass 866) visa claiming that he cannot return to Indonesia because he has economic problems in Indonesia and does not have permanent work.
4. On 28 June 2018, a delegate of the First Respondent refused to grant the visa on the basis that the application lacked detail and supporting evidence - ultimately finding that the Applicant's claims to fear harm were not for a reason as defined at s.5J(1)(a) of the Migration Act 1958 (Cth) (Act) (delegate's decision). A notification letter was sent to the email address as recorded on the visa application (*********1994@yahoo.com).
5. On 5 March 2020, the Department of Home Affairs notified the Applicant that he may be eligible to apply for review of his protection visa refusal decision following a court outcome for another person. By that correspondence, sent by email to the same email address as recorded on the visa application, the Department sought confirmation as to where the Applicant wanted new correspondence sent and invited updated contact details or appointment of an authorised representative.
6. On 23 May 2020, the Applicant was renotified of the delegate's decision by the Department as the Department had formed the view that the original notification of 28 June 2018 was affected by the same issue as identified in BMY18 v Minister for Home Affairs [2019] FCAFC 189 (Reeves, Perram and Charlesworth JJ) (renotification letter) (extracted in full, omitting confidential information only, at Annexure A to these reasons). The renotification letter was sent to the same email address as recorded on the visa application.
7. On 31 August 2020, the Applicant applied to the Administrative Appeals Tribunal (as it then was) (Tribunal) for review of the delegate's decision. By that application, the Applicant nominated an authorised representative.
8. On 1 September 2020, the Tribunal notified the Applicant's nominated representative that the application was not valid as it was not lodged within the relevant 28-day statutory time limit and invited the Applicant to comment in writing. In response, on 2 September 2020, the Applicant's representative submitted to the Tribunal that the Applicant did not know a notification of the delegate's decision was sent to him by email nor did the Applicant nominate an email to receive a notice from the Department.
9. On 18 January 2021, the Tribunal decided that it did not have jurisdiction in the matter on the basis that the review application was not lodged within the prescribed period (Tribunal's decision).
10. On 27 January 2021, the Applicant filed the present application for judicial review of the Tribunal's decision. The originating application was accompanied by an affidavit of the Applicant which annexed the Tribunal's decision.
11. On 4 February 2021, the First Respondent filed a response to the Applicant's originating application which was amended, on 27 March 2025, as to seek that the judicial review application be summarily dismissed pursuant to r.13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules) including because the Tribunal had determined that it did not have jurisdiction because the application to it was filed outside the prescribed timeframe and the Applicant had no reasonable prospects of successfully prosecuting the proceeding.
12. On 8 July 2025, the First Respondent filed a court book.
13. On 22 July 2025, the First Respondent filed a supplementary court book and submissions in support of summary dismissal.
14. On 11 August 2025, the First Respondent's summary dismissal application proceeded to electronic hearing before a Registrar of the Court. The Applicant represented himself and was provided assistance of an Indonesian interpreter. The First Respondent was represented by a solicitor advocate. The Registrar made orders dismissing the Applicants' substantive application pursuant to r.13.13(a) of the 2021 Rules (Registrar's decision). The First Applicant was ordered to pay the First Respondent's costs in accordance with the scale amount for proceedings concluded at an interlocutory stage.
15. On 14 August 2025, the Applicant lodged an application for review of the Registrar's decision which was accepted for filing on 15 August 2025 (Registrar Review application). It is that application with which these reasons are concerned.
16. On 20 August 2025, procedural orders were made fixing the Registrar Review application for hearing before the Court as presently constituted. The parties were invited to file any additional affidavits and written submissions in support of their respective cases. No further material was filed by or for the Applicant. On 29 August 2025, the First Respondent filed an outline of written submissions and an affidavit of the First Respondent's solicitor filed on 22 September 2025.
17. On 23 September 2025, the Registrar Review application was heard before the Court as presently constituted. The First Applicant represented himself and was provided assistance of an Indonesian interpreter. The First Respondent was represented by a solicitor advocate.

SHOULD THE APPLICATION FOR SUMMARY DISMISSAL BE ALLOWED?

1. The question of whether the substantive application ought to be summarily dismissed is required to be considered on a de novo basis.
2. Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides:

143 Summary judgment

(1) 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 prosecuting the proceeding or that part of the proceeding; and

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

(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.

(5) This section does not apply if the Federal Circuit and Family Court of Australia (Division 2) is exercising jurisdiction under the Family Law Act 1975.

1. Rule 23.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 Rules), in force at the time of hearing, in turn 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.

(2) If an order is made under subrule (1) dismissing part of the proceeding, the

proceeding may be continued for that part of the proceeding not dismissed.

(3) If an order is made under subrule (1) giving judgment for the applicant against

the respondent for the whole or part of the applicant's claim, a respondent who

has a cross-claim against the applicant or some other party may:

(a) continue to prosecute the cross-claim against the applicant or other party;

and

(b) apply to the Court for an order staying execution on or enforcement of the

judgment until the respondent's cross-claim is determined.

1. At the outset, it is worth noting that the task on judicial review is not to undertake a general review of the Tribunal's decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia [1995] HCA 58; [1995] 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) as cited in BIJ18 v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 443 (Judge Kelly) at [19]-[20].
2. In considering an application for summary dismissal, the Court is concerned with whether the case raises a real or genuine dispute that might reasonably be resolved in an applicant's favour as distinct from the identification of jurisdictional error in the Tribunal's decision: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 (Judge Given) at [33] and the cases cited therein.
3. The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success.
4. By the first ground of the substantive application, the Applicant asserts that the Tribunal failed to take into account that the Applicant would have applied for merits review within the prescribed time limits if he had received the original notification letter of 28 June 2018 and the renotification letter of 23 May 2020.
5. By the substantive application, the Applicant identified 3 grounds of review, expressed as follows:
   1. The Tribunal failed to take into account that I would apply for merit review with the Tribunal if I did receive the notification on 28 June 2018 and renotification on 23 May 2020.

Particulars

Paragraph 3 of decision record

1. The Tribunal failed to invite for a hearing or conduct a hearing to present my case.

2. The Tribunal failed to exercise its jurisdiction.

Particulars

Paragraph 9 of decision record

(sic.)

1. For their part, the First Respondent's primary contention was that the Tribunal was correct to conclude that the Applicant was validly notified of the delegate's decision and correct to find that there was no jurisdiction to deal with the application for review.

1. The starting point is s.66 of the Act which, at the relevant times, provided that notification of a decision to refuse a visa was to specify certain matters as follows:

(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

(2) Notification of a decision to refuse an application for a visa must:

(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa - specify that criterion; and

(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa - specify that provision; and

(c) unless subsection (3) applies to the application - give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 - state:

(i) that the decision can be reviewed; and

(ii) the time in which the application for review may be made; and

(iii) who can apply for the review; and

(iv) where the application for review can be made; and

(e) in the case of a fast track reviewable decision - state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and

(f) in the case of a fast track decision that is not a fast track reviewable decision - state that the decision is not subject to review under Part 5, 7 or 7AA.

(3) This subsection applies to an application for a visa if:

(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and

(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

(4) Failure to give notification of a decision does not affect the validity of the decision.

(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

criterion for the visa - specify that criterion; and

(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa - specify that provision; and

(c) unless subsection (3) applies to the application - give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 - state:

(i) that the decision can be reviewed; and

(ii) the time in which the application for review may be made; and

(iii) who can apply for the review; and

(iv) where the application for review can be made; and

(e) in the case of a fast track reviewable decision - state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and

(f) in the case of a fast track decision that is not a fast track reviewable decision - state that the decision is not subject to review under Part 5, 7 or 7AA.

(3) This subsection applies to an application for a visa if:

(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and

(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

(4) Failure to give notification of a decision does not affect the validity of the decision.

(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

1. Sub-sections 494B(1) and 494B(5) of the Act relevantly provided that one of the permissible methods to notify of a refusal decision was transmission of the document by email to the last known email address provided to the First Respondent for the purpose of receiving documents.
2. Section 494C relevantly provided that, if the First Respondent gave a document to a person by the method in s.494B(5) (including by email), then the person was taken to have received the document at the end of the day on which the document was transmitted. Further, at s.494C(7):

(7) If:

(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and

(b) the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

1. Section 494D(1) provided that if an applicant gave the Minister written notice of the name and address of another person (authorised recipient) who was authorised by the applicant to receive documents in connection with specified matters arising under the Act or the Regulations, the Minister must have given the authorised recipient, instead of the applicant, any documents in connection with those matters that the First Respondent would otherwise have given to the applicant. Section 494D(2) further provided that if the Minister gave a document to the authorised recipient, the Minister was taken to have given the document to the applicant.
2. The Tribunal's jurisdiction to review the delegate's decision is (and was) contingent upon an application being properly made under s.347 of the Act: s.348. One requirement of a proper application where the applicant(s) were not in immigration detention was that the application for review was required to be made within 28 days: ss.338(2) and 347(1)(b) of the Act and reg.4.10(1)(a) of the Migration Regulations 1994 (Cth).

1. The contemporaneous documents in the present case demonstrate that the renotification letter was given to the Applicant at his then nominated email address.
2. The critical issue then in this case is whether the content of the renotification letter was unclear and confusing such that it was, in effect, invalid and therefore the time for filing with the Tribunal had (and has not) yet started to run.
3. In DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (Rares, Perram and Farrell JJ) (DFQ17), Perram J considered the requirements of a valid notice given in compliance with s.66(2) of the Act. It was there held that the requirement that the notification "state" information must be read in context of the notification letter having triggered a review process - where an incomplete or obscure statement of required information might prevent an individual from effectively engaging in that review process: at [52]. And, at [57]-[58], it was reasoned that:

... The regime creates a strict review system but requires certain critical information to be provided to an applicant. That scheme would be undermined were the information provided under s 66(2) either less than complete or less than clear.

I conclude that when s 66(2) uses the word 'state' it means that the notification must set out the information in each of the subsections in a way which is not only complete ... but clear as well.

1. The notification letter in this case did not specify the exact date by which the application for review had to be given to the Tribunal but is absent the obscurity, incomprehensibility or confusion identified in the authority of DFQ17 and Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (Markovic J) (Sandor) (and other like decisions) because it was addressed to a direct, personal email provided by the Applicant as the nominated address - as distinct from an authorised representative. Further, the relevant content which enabled the Applicant to understand the date by which a review application was to be given to the Tribunal appeared under one single heading of "Review Rights" which was clear and referable. As distinct from other cases, the renotification letter in the present case did not require the Applicant to piece together information across different pages.
2. Accordingly, in all of the circumstances and for the above reasons, I am of the view that this particular (re)notification letter was capable of being understood by a person exercising reasonable care. As the Tribunal did not have jurisdiction to consider the application to it for review, there is no basis to find a denial of procedural fairness by way of a denial of a hearing.

1. For the above reasons, the application for review of the Registrar's decision of 11 August 2025 does not establish any error of jurisdiction and must be dismissed.
2. In addition to order 2 of the Registrar's orders of 11 August 2025, it is appropriate in all of the circumstances that the Applicant pay the First Respondent's costs fixed in the amount of $1,000.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

ANNEXURE A

23 May 2020

[name and address redacted]

In reply quote:

Dear [redacted]

Notification of refusal of application for a Protection (subclass 866) visa

This letter refers to your application for a Protection (subclass 866) visa, which was lodged at Melbourne Regional Office on 05 January 2018.

Decision on Protection (subclass 866) visa

I wish to advise you that the application for a Protection (subclass 866) visa has been refused for the following applicant(s):

[name redacted]

The Department has assessed your case and found that you were not correctly notified of this decision. Because of this, I am now re-notifying you that the visa application for the applicant listed above has been refused.

After careful consideration of all the information available, the delegate who signed the attached decision record was not satisfied that you met the relevant criteria for the grant of the visa as provided in Australian migration law.

This application was refused because you did not satisfy subsection 36(2) of the Migration Act 1958. That provision requires you to be a non-citizen in Australia in respect of whom Australia has protection obligations or a member of the same family unit as such a person.

The attached decision record provides more detailed information about this decision and the applicant(s) it applies to.

Review Rights

The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.

As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.

Lodging an application for merits review

Applications for review can be lodged online, in person, faxed or posted to any registry of the Administrative Appeals Tribunal (AAT).

Online

ww.aat.gov.au/apply-online

Registries of the Administrative Appeals Tribunal

New South Wales

Level 6

83 Clarence Street

Sydney NSW 2000

Victoria

Level 4

15 William Street

Melbourne Vic 3000

Western Australia

Level 13

111 St Georges Terrace

Perth WA 6000

South Australia

Level 2

1 King William Street

Adelaide SA 5000

Queensland

Level 6

295 Ann Street

Brisbane Qld 4000

Tasmania

39-41 Davey Street

Hobart TAS 7000

Australian Capital Territory

Level 8

14 Moore Street

Canberra ACT 2601

Alternatively, review application forms can be lodged by email to mrdivision@aat.gov.au or by fax to 02 9276 5599 or 03 9454 6999 or 07 3052 3069. Make sure to include a copy of this letter and the attached decision record when lodging any application for review.

Further information about the merits review process is available from the AAT on the Tribunal website www.aat.gov.au, or by telephoning 1800 228 333.

If you apply for a merits review of the decision to the AAT and the Tribunal determines that you are not a person to whom Australia has protection obligations, a post-decision fee will be payable. If this fee is not paid, it may affect any future visa application made by you or members of your family.

Your Immigration status

You are currently an unlawful non-citizen in Australia. You must contact the Compliance Section of your nearest departmental office to discuss your immigration status. Our contact details are available on our website immi.homeaffairs.gov.au/help-support/contact-us/

Being unlawful has serious consequences including possible detention and removal from Australia.

Leaving Australia

You do not have a valid visa to remain in Australia. If you are not granted another visa and you are not eligible to apply for, or do not make a valid application for merits review of this decision, then you must depart Australia as soon as possible. If there are reasons why you cannot depart Australia, you should contact the Department for advice and assistance as soon as possible.

Lodging another application

While you are in Australia, you can only lodge another application for a visa to allow you to remain in Australia in very limited circumstances. Refer to Form 1026i Limitations on Applications in Australia available at immi.homeaffairs.gov.au/help-support/departmental-forms/pdf-forms

If you lodge a further valid application, you may be granted a bridging visa which will remain in effect until you are notified of a decision on that application.

Any new application will be considered on its individual merits.

Financial or case worker assistance

If you are receiving Status Resolution Support Services (SRSS), you are refused a protection visa, and you do not lodge an application for review with the AAT, you will be transitioned out of the SRSS programme within seven business days from the end of the prescribed timeframe for seeking merits review.

Questions about this decision

We cannot consider your visa application any further.

Visa application charge

The visa application charge which has already been paid can only be refunded in limited circumstances, regardless of the application outcome.

A receipt for your payment is available through your ImmiAccount.

Border Watch - report something suspicious

If someone has given you incorrect information about applying for a protection visa or if someone has applied on your behalf without your knowledge, you can report this information through the Department's website www.homeaffairs.gov.au/report

Yours sincerely

John

Position number: 60025474

Department of Home Affairs