BGB23 v Minister for Immigration and Citizenship [2026] FCA 200

1. By an application filed on 14 February 2025, the applicant seeks leave to appeal from the orders and judgment of the Federal Circuit and Family Court of Australia delivered on 5 February 2025 in BGB23 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 116.
2. The primary judge dismissed the applicant's application for review of a registrar's decision dated 10 January 2025, pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act). The registrar had summarily dismissed the applicant's substantive application for judicial review, pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules). The applicant's substantive application sought judicial review of a decision of the second respondent (Tribunal) dated 30 March 2023, which found that it had no jurisdiction to review the decision of a delegate of the first respondent (Minister) to refuse him a Protection (Class XA) (Subclass 866) visa (visa) because a previous application for review of the delegate's decision had already been dealt with by the Tribunal.
3. The primary judge's decision was interlocutory in nature, being made pursuant to s 256(1) of the FCFCOA Act and in accordance with the procedure in r 21.04 of the FCFCOA Rules, to review, by way of de novo hearing, the registrar's exercise of the power to summarily dismiss the matter, and therefore, leave to appeal from it is required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
4. When the matter was called for hearing this morning there was no appearance for the applicant. The applicant had not filed written submissions, contrary to the orders which I had previously made. Although I do have the power to dismiss the application summarily, I take the view that it is preferable in a matter of this kind that the matter be dealt with on its merits, and accordingly, I give the following reasons for my decision.
5. On 30 June 2017, the applicant, a citizen of the People's Republic of China (China) applied for the visa. In a statement of claim accompanying the visa application, the applicant claimed she feared harm for being a Falun Gong practitioner. The applicant claimed she had been monitored, assaulted and detained by the police on several occasions.
6. On 10 March 2022, the Minister's delegate refused to grant the applicant the visa, as the delegate was not satisfied that she was a person in respect of whom Australia owed protection obligations under the Migration Act 1958 (Cth) (Act).
7. On 17 March 2022, the applicant applied to the then Administrative Appeals Tribunal (Tribunal) for review of the delegate's decision.
8. On 8 November 2022, by email to the first email address provided by the applicant, the Tribunal invited the applicant to attend an in-person hearing on 30 November 2022. Attached to that email was Factsheet MR18 - Information about hearings. The hearing invitation and the accompanying factsheet notified the applicant that if she did not attend the hearing, the Tribunal may make a decision on the review without taking further action to allow or enable the applicant to appear before it, or it may dismiss her application for review without any further consideration of the application or information before it.
9. On 23 November 2022 and 29 November 2022, being five and one business days before the hearing, respectively, the Tribunal sent SMS reminders of the hearing date to the telephone number nominated by the applicant. The applicant did not respond to the hearing invitation, nor did she attend the Tribunal hearing on 30 November 2022.
10. On 30 November 2022, the Tribunal dismissed the application under s 426A(1A)(b) of the Act, without further consideration of the application or information before it (Dismissal Decision). On the same day, the Tribunal notified the applicant of the Dismissal Decision and provided the applicant with Factsheet MR20 - Information about dismissal of application. That factsheet notified the applicant that she had 14 days after receipt of the Dismissal Decision to apply for reinstatement, and that in the event no reinstatement application was received, the Tribunal would have to confirm its decision to dismiss the application. The applicant did not respond, and she did not seek reinstatement.
11. On 16 December 2022, the Tribunal confirmed the Dismissal Decision pursuant to s 426A(1)(c) of the Act (Confirmation Decision). On the same day, the Tribunal notified the applicant of the Confirmation Decision through the email address previously nominated by the applicant.
12. On 2 January 2023, the applicant filed a second application with the Tribunal for review of the delegate's decision.
13. On 30 March 2023, the Tribunal determined that it did not have jurisdiction in the matter, as the delegate's decision had already been the subject of a valid review by the Tribunal (First No-Jurisdiction Decision). On 3 April 2023, the applicant was notified of that decision by email.
14. On 9 January 2023, at 12.12 pm AEDT, the applicant filed a third application with the Tribunal for review of the delegate's decision.
15. On 19 January 2023, the Tribunal invited the applicant to comment on the validity of the application. The Tribunal conveyed its view that the review application was not valid, in circumstances where the applicant had already sought review of the delegate's decision and the Tribunal had made a decision on that application on 15 December 2022. It invited the applicant to provide any comments on the validity of her application by 2 February 2023. The applicant did not respond to the invitation and did not otherwise contact the Tribunal.
16. On 30 March 2023, the Tribunal decided that it did not have jurisdiction in the matter, as the delegate's decision had already been the subject of a valid review by the Tribunal (Second No-Jurisdiction Decision). On 4 April 2024, the applicant was notified of that decision by email. It is the Second No-Jurisdiction Decision that constitutes the subject matter of the present application.
17. On 9 January 2023, at 1.21 pm AEDT, the applicant filed a fourth application with the Tribunal for review of the delegate's decision.
18. On 30 March 2023, the Tribunal determined that it did not have jurisdiction in the matter, as the delegate's decision had already been the subject of a valid review by the Tribunal. On 23 April 2023, the applicant was notified of that decision by email.
19. On 8 May 2023, the applicant sought judicial review in the Federal Circuit and Family Court of Australia of the Second No-Jurisdiction Decision. The application advanced two unparticularised grounds as follows:
    1. The Department of Home Affairs was unfairly treated my claims and evidence with wendesbury (sic) unreasonableness.
    2. The Department of Home Affairs and Administrative Appeals were improperly applied the legal provisions: s 65 of Migration Act 1958 properly to assess my case.
20. In his response to the application filed on 31 May 2023, the Minister sought summary dismissal under rule 13.13(a) of the FCFCOA Rules.
21. On 10 January 2025, a registrar summarily dismissed the judicial review application, the reasons for which were published as BGB23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 66.
22. On 17 January 2025, the applicant applied for review of the registrar's decision.
23. On 5 February 2025, the primary judge dismissed that application. The primary judge held that the court did not have jurisdiction to review the delegate's decision, being a primary decision within s 476 of the Act. However, the primary judge then adopted a course which was favourable to the applicant by dealing with the grounds of judicial review as if they were directed to the Tribunal's decision. On ground 1, the primary judge held that the Tribunal was correct to find that it did not have jurisdiction in relation to the third review application and, therefore, was not required to consider the applicant's claims or evidence. As such, there was no reasonable prospect of the applicant successfully establishing that the Tribunal acted unreasonably in its consideration (or non-consideration) of her claim. On ground 2, the primary judge held that s 65 of the Act did not apply as the Tribunal did not have jurisdiction to consider the substantive visa application. The primary judge also found the applicant's reliance on s 494C of the Act and sub-regulation 4.31(2) of the Migration Regulations 1994 (Cth) to be misplaced, as neither provision arose for consideration in the Tribunal's decision. As for the applicant's repeated assertions at the hearing before the primary judge that her lawyer had the details of her grounds, the primary judge found that there was nothing in the material before the court to suggest that the applicant had been represented at any stage. In any event, these assertions did not reveal any jurisdictional error in the Tribunal's decision or that the applicant had any reasonable prospect of successfully prosecuting her judicial review application.
24. In order to be granted leave to appeal, the applicant must satisfy the court of the cumulative factors set out in Décor Corporation Pty Ltd v Dart Industries Pty Ltd [1991] FCA 844; (1991) 33 FCR 397 at 398-399, namely:

(a) whether, in all the circumstances, the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration by the Full Court; and

(b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

1. The proposed grounds of appeal substantially reflect the two grounds of judicial review considered by the primary judge. They are as follows:
   1. Minister for Immigration, Citizenship, and Multicultural Affairs and Administrative Appeals Tribunal and Federal Circuit and Family Court of Australia was unfairly treated my claims and evidence with wendesbury (sic) unreasonableness.
   2. Minister for Immigration, Citizenship, and Multicultural Affairs and Administrative Appeals Tribunal and Federal Circuit and Family Court of Australia did not apply the legal provisions of s. 65 of Migration Act 1958 properly to assess my case.
2. The Minister submits, and I accept, that these grounds do not cast any doubt on the correctness of the primary judge's decision, much less doubt sufficient to warrant its reconsideration by the Full Court. Insofar as the grounds continue to direct attention to the delegate's decision, the primary judge was plainly correct to hold that the court did not have jurisdiction to review that decision. In relation to proposed ground 1, the primary judge proceeded upon an orthodox understanding of the law relating to repeated Tribunal applications. Having accepted the Minister's submission based on the relevant authorities that the Tribunal was correct to find it did not have jurisdiction to review the delegate's decision, there was no error in the logical corollary drawn by the primary judge that the Tribunal could not have acted unreasonably in its consideration (or non-consideration) of protection claims that it did not have jurisdiction to consider. As for proposed ground 2, the primary judge was plainly correct to hold that no error could be established in respect of the Tribunal's application of s 65 of the Act, as there was no occasion for the Tribunal to exercise afresh the powers and discretions conferred by the Act on the delegate, it having found that it lacked jurisdiction.
3. Accordingly, the application for leave to appeal should be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.