CBY25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 154

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).

(Delivered ex tempore and revised from the transcript)

1. The originating application before the Court is an application for judicial review[1] of a decision of the Administrative Review Tribunal.[2] The Judicial Review Application was made under s 476 of the Migration Act 1958 (Cth).
2. Today the applicant has not appeared. The matter was called outside and there was an attempt to contact the applicant by telephone on the number given in the Judicial Review Application. That attempt was unsuccessful.
3. In the circumstances, the Minister, now the Minister for Immigration and Citizenship, seeks orders for a name change for the Minister, dismissal of the Judicial Review Application for non-appearance in accordance with r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Law Rules) 2025 (Cth),[3] and for costs in the sum of $6,800.00, which the Court notes is a sum less than that which the Minister would be entitled to upon a successful defence of the application which was listed for hearing today in Court.
4. The Court notes the following matters:

(a) the Judicial Review Application was filed on 16 February 2025 and supported by an affidavit annexing a copy of the Tribunal Decision;

(b) on 27 February 2025 the Minister filed a response in which the Minister sought that the Judicial Review Application be dismissed, noting that it was not particularised and gave rise to no jurisdictional error in the Tribunal Decision and was simply an application for impermissible merits review;

(c) the Court Book was filed on 27 March 2025, and a copy was provided electronically to the applicant, and a hard copy was sent to the applicant by express post. The Court refers to the affidavit of Isabel Margarita Cruz Aroca filed on 29 January 2026, which has been treated as being in evidence for today's purposes,[5] and the Court will also mark the Court Book as Exhibit 1;

(d) on 27 May 2025 a Registrar of this Court made the usual orders made by a Registrar on a first appearance in migration judicial review matters,[6] including an order that the matter be listed for a final hearing on a date to be advised;

(e) in late November 2025 the matter was docketed to the presiding Judge;

(f) on 3 December 2025 a notice of listing was sent to the parties advising of an in-person hearing to be held in the Perth Registry today, 3 February 2026, and that if there was no appearance by the applicant, that the Judicial Review Application might be dismissed pursuant to r 22.04(1)(a)(i) of the GFL Rules;

(g) on 15 January 2026 the Minister filed a written outline of submissions in accordance with the Registrar's Order, and according to Aroca Affidavit that was served on the applicant by email; and

(h) on 27 January 2026 a confirmation of listing for today's hearing was sent to the parties by the presiding Judge's Associate.

(a) the applicant has not filed an outline of submissions or any other documents that the applicant was entitled to serve pursuant to the Registrar's Order;

(b) there has been no response by the applicant to the confirmation of listing or the Minister's filing of various documents; and

(c) the Court is satisfied that the documents which have been sent and/or served by the Court and/or the Minister have been sent to an email address for service for the applicant which appears in the Judicial Review Application, and likewise in relation to documents sent to the applicant's physical address for service in the Judicial Review Application.

Section 106 of the Administrative Review Tribunal Act 2024 (Cth)

1. One further matter arises and that is in relation to, as raised in the Minister's submissions, s 106 of the Administrative Review Tribunal Act 2024 (Cth),[7] and in particular s 106(3). The Minister raises the matter in the absence of submissions by the applicant, and the Minister submits that there is no reasonable basis to read s 106(3)(c) of the ART Act as effectively requiring a Tribunal to form the view that the discretion in that paragraph can only be exercised where an issue on review could be adequately determined in the applicant's favour.
2. The Minister raises that because of a decision of this Court in LLR24 v Minister for Immigration and Citizenship (No 2).[8] The Minister submits that LLR24 was wrongly decided. The Minister submits, and the Court as presently constituted agrees, that the better reading of s 106(3)(c) of the ART Act is that it is open to the Tribunal to exercise the discretion in that proviso, and to then go on and find that there was insufficient evidence before it to accept the applicant's claims, which is what occurred here. The Court notes that at least two recent judgments of this Court found that the contrary view, that is, the view expressed in LLR24, is not the better construction of s 106(3)(c) of the ART Act. Those two erudite judgments are of Judge Kaur-Bains in EES25 v Minister for Immigration and Citizenship[9] at [74] and following, and of Judge Marquard in BYI25 v Minister for Immigration and Citizenship[10] at [186]-[236], and particularly at [231]-[236]. It is unnecessary for the Court to canvass further what is set out in those judgments, and it suffices for present purposes to say that the Court adopts, with great respect, what was said there and therefore takes the view that the judgment in LLR24 was plainly wrong - as to which see the observations in both EES25[11] and BYI25.[12] Therefore, no jurisdictional error arises by reason of the manner in which the Tribunal dealt with s 106(3) of the ART Act in these proceedings.

1. In the circumstances of the non-appearance of the applicant today, the matter was called outside three times and there was no appearance, and as the Court indicated, telephone calls were also made to the number for the applicant in the originating application and there was no answer on that number. The Court is therefore satisfied there is no appearance by the applicant and it is appropriate to exercise the discretion in r 22.04(1)(a)(i) of the GFL Rules to order the dismissal of the Judicial Review Application for non-appearance, with costs in the sum of $6,800.00 as sought by the Minister.
2. There will also be an order for a name change for the Minister.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

[2] "Tribunal Decision" and "Tribunal" respectively.

[8] [2025] FedCFamC2G 1227 ("LLR24").

[9] [2025] FedCFamC2G 1227; (2025) 397 FLR 1 ("EES25").

[10] [2025] FedCFamC2G 1671 ("BYI25").

[11] EES25 at [43] per Judge Kaur-Bains: "LLR24 is "plainly wrong"".

[12] BYI25 at [252] per Judge Marquand: "I have departed from the reasoning in LLR24 ...", and see generally at [248]-[252].