ARG18 v Minister for Immigration and Citizenship [2026] FCA 252

(Delivered ex tempore, revised from transcript)

1. The appellant who is now self-represented appeals orders made in the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) on 11 March 2025 which dismissed his originating application for review of a decision made by the Immigration Assessment Authority to affirm a decision of a delegate of the Minister not to grant a safe haven enterprise visa. He was also ordered to pay the costs of the application. Judge Blake gave comprehensive reasons for those orders: ARG18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 320 (PJ).
2. The appellant had the benefit of legal representation before the primary judge. The notice of appeal from the orders made by the primary judge was prepared and lodged by a solicitor on 8 April 2025. For reasons that are not apparent, the appeal was not docketed to me until 17 December 2025. The appellant's solicitor filed a notice of ceasing to act on 26 February 2026, following an unsuccessful attempt by unilateral email to my chambers to obtain an adjournment of the hearing listed for today.
3. The grounds of appeal mirror the grounds of review before the primary judge. That is the Authority committed jurisdictional error in failing to take into account relevant considerations and the findings made lacked a logical probative basis or were otherwise legally unreasonable. The primary judge was not satisfied that either ground was made out. As to the first, each of the matters particularised as not considered by the Authority were found by the primary judge as not arising on the material before the Authority, were not the subject of claims that the appellant expressly made and nor did they arise implicitly or otherwise emerge from the materials relied on, were contradicted by the appellant's own evidence or were simply unsupported. As to the second ground, the primary judge was unable to accept that the reasoning of the Authority was illogical or legally unreasonable.
4. The same contentions are now formulated as grounds of appeal, identical in all respects to the grounds below save for adding that the "Court at first instance erred in not finding" in accordance with the review grounds.
5. The appellate jurisdiction of the Court to hear the appeal is conferred at s 24 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Appeals from the Circuit Court are provided for at s 24(1)(d) which is to be exercised by a single judge, unless a judge considers it appropriate for the appellate jurisdiction to be exercised by a Full Court: s 25(1AA). That determination has not been made.
6. It is fundamental that the appellate function is limited to the correction of error. An appeal to this Court is not an opportunity to re-run the arguments that were unsuccessfully advanced before the Circuit Court. That point has been repeatedly made, but regrettably not understood by some legal practitioners and most self-represented litigants. The appellant's obligation in a notice of appeal is to identify where the Circuit Court committed legal, factual or discretionary error. That the appeal is by way of rehearing is not an invitation to replicate the arguments that failed below in the hope of a better outcome. This is not a "double or nothing" jurisdiction. The generalised contention that the primary judge "erred in not finding" conformably with the grounds of review relied on below does not identify appealable error. It is worth repeating some judicial elaborations of the obligation of all appellants to identify error. The starting point is Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23] where Gaudron, McHugh, Gummow and Hayne JJ stated:

For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.

1. In this Court to the same effect see: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [22] - [30]; Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 at [2] - [4]; SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2025] FCAFC 34; (2025) 308 FCR 474 at [129] - [145] and Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd [2026] FCAFC 16 at [51]. Save for the discretion to grant leave to amend, an appeal that fails this basic requirement should ordinarily be dismissed instanter.
2. Looking beyond the wholly deficient appeal grounds, sometimes an outline of submissions will compensate for a defective notice of appeal, but not in this matter. The appellant failed to comply with the procedural orders made by a Registrar on 29 April 2025 in many respects, including the requirement to file and serve a written outline of submissions no later than 10 business days before the hearing date. Nonetheless, recognising that self-represented parties are at a procedural disadvantage, I granted the appellant an indulgence and invited him this morning to identify where in the reasons of the primary judge there is to be found error. He failed to do so. He submitted more than once to the effect: I am not saying there is an error, I just want my claim accepted. As I explained to the appellant, I cannot examine the merit of his visa application.
3. It follows that the appeal must be dismissed for failure to identify and make out error by the primary judge. That said, there is another reason. This is a case where I have considered and agree completely with the primary judge's reasons which are thorough, comprehensive and correct. I adopt the reasons as my own. It is unnecessary to go further: Nathan Ltd v Rossington Holdings Pty Ltd [1992] NSWCA 137, Gleeson CJ, Clarke and Handley JJA. There is no basis to conclude, for the reasons given by the primary judge, that the decision of the Authority is affected by jurisdictional error. The submissions of Mr Sypott for the Minister dated 25 February 2026, in more detail explain why that is so.
4. The name of the first respondent is amended to Minister for Immigration and Citizenship. The appeal is dismissed. The appellant must pay the Minister's costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.