CCM20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1872

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).

1. The Applicant is a citizen of Malaysia. He made an application for a protection visa because he says he has a well-founded fear of persecution should he return to Malaysia because he has an unpaid personal loan from a moneylender. He says that the "moneylender [will] come and find me [and] because of this debt it's... very dangerous for me and my family."
2. The Administrative Appeals Tribunal found that it did not have jurisdiction as to the Applicant's merits review application because the Applicant had given his merits review application to the Tribunal more than 28 days after he was notified of the delegate's decision.
3. In this case, the 28-day period in which a merits review application as to a delegate's decision must be given to the Tribunal is prescribed under s. 412(1)(b) of the Migration Act 1958 (Cth) (the Act) and reg. 4.31(2) of the Migration Regulations 1994 (Cth). The Applicant had been notified (by email) of the delegate's decision on 10 October 2019. The deadline for any merits review application to be "given to the Tribunal" under s. 412(1)(b) was 28 days later, on 6 November 2019. The Applicant made his review application four days later, on 10 November 2019.
4. Because the Applicant had made his review application more than 28 days after he was notified of the decision, the Tribunal (correctly) decided that it did not have jurisdiction as to his merits review application.
5. The Tribunal had no discretion to extend the 28-day period for the making of a merits review application.
6. The Applicant has now brought a judicial review application alleging jurisdictional error in the Tribunal's decision.
7. The Minister responded in this court by bringing an application for the summary dismissal of the judicial review application on the basis that the Applicant has "no reasonable prospect ... of successfully prosecuting the proceeding" (Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), s. 143(2); Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth), r. 23.08(1)(a)).
8. On 1 September 2025, a Registrar of the court granted the Minister's application and summarily dismissed the Applicant's judicial review application.
9. A party may apply to the court under s. 256(1) of the FCFCOA Act for a de novo review of the exercise of a power of the court by a registrar. Rule 3.06 prescribes that the review application must be made within 21 days. The deadline was 22 September 2025. The Applicant only filed his review application on 15 October 2025. I may extend time for the Applicant to bring his review of the registrar's decision under r. 1.15. I treat the current application before me as an application for an extension of time in which to review the registrar's decision
10. It is not in the interests of justice to extend time for the bringing of the review application as to the registrar's decision because the underlying judicial review application has no reasonable prospects of success. My reasons follow.

1. On 10 October 2019, a delegate of the Minister refused to grant the visa.
2. Also, on 10 October 2019, the Department sent an email to the email address the Applicant had nominated for communications that notified him that "the application for a protection ... visa has been refused". In submissions before me, the Applicant confirmed that the email address on the Department's notification letter to him was his email address.
3. Under s. 412(1)(b) of the Act:

(1) An application for review of a Part 7-reviewable decision must:

...

(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision ....

1. Regulation 4.31(2) sets the "period prescribed":

(2) For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7-reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.

[Emphasis added]

1. Section 494B(5)(b) provides that the Minister may give a document to a person by email. Section 494C(5) provides that "the person is taken to have received the document at the end of the day on which the document is transmitted": in this case, 10 October 2019.
2. The Department's notification letter set out the fact that the Applicant had review rights as to the delegate's decision. In its relevant part the notification letter set out the Applicant's review rights as follows:

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 28 calendar days after the day on which 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 above mentioned time in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.

[Emphasis added]

1. As noted, the Applicant lodged his merits review application on 10 November 2019, four days after the prescribed period expired.
2. The Tribunal's reasons for concluding that it did not have jurisdiction included the following (TD, [5]-[6]):
   1. The Tribunal finds that the applicant is taken to have been notified of the decision on 10 October 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 6 November 2019.
   2. As the application for review was not received by the Tribunal until 10 November 2019 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

1. Under s. 143(2) of the FCFCOA Act and r. 23.08(a) of the Rules the test for whether the Applicant's judicial review application ought to be summarily dismissed is whether I am satisfied that the Applicant has "no reasonable prospect of successfully prosecuting the proceeding".
2. The Minister, as the moving party for summary dismissal, bears the onus (Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473, [7]). In Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [59] a High Court plurality said that, without delimiting the concept, in many cases an applicant will have "no reasonable prospect" if the proceeding could be described as "frivolous", "untenable", "groundless" or "faulty". Or as Reeves J said in Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641 at [46] what is required is "a critical examination of the available materials to determine whether there is a real question of law of fact which should be decided at trial".
3. There was a passing reference in argument before me to the fact that when the Minister first brought his summary dismissal application, the 2021 Rules applied, and the Minister moved for the summary dismissal of the judicial review application based on r. 13.13 of the 2021 Rules. Since 1 September 2025, the 2025 Rules have applied, and the Minister now moved under r. 23.08 of the 2025 rules. Rule 13.13 of the 2021 Rules was entitled "summary dismissal" and rule 23.08 of the 2025 Rules is entitled "summary judgment". It is not necessary to decide whether there is any difference between the two - although in passing I note it seems to me unlikely that the change works any substantive difference - particularly having regard to the material similarity between the content of r. 13.13 of the 2021 Rules and r. 23.08 of the 2025 Rules. Procedurally, because the 2025 rules now apply to the de novo review, in considering the Minister's summary dismissal application, I will proceed under r. 23.08 of the 2025 Rules and consider the issue as set out in r. 23.08(1)(a) as to whether the Applicant has "no reasonable prospect of successfully prosecuting the proceeding".

1. Even though the court made orders for him to do so, the Applicant did not file any written submissions in support of his application before the registrar. He did not avail himself of my permissive order that he may file additional material on the review before me.
2. As a result, the grounds of review set out in his initiating application frame my consideration of the merits. They are as follows (copied exactly):

1. THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE

2. THE TRIBUNAL DEPRIVED ME OF PROCEDUR FAIRNESS

THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE;

THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABAOUT THE TYPES OF HARM RELEVENT IN MY CASE.

ACCORDING IN SECTION 44 OF THE ADMINISTRATIVE APPEAL TRIBUNAL ACT 1975 THERE IS A DESCRIPTION AND AUTHORIZING ME TO MAKE SUCH ACTION APPEAL TO FEDERAL CIRCUIT COURT.

The 28-day period for merits review cannot be extended

1. None of the Applicant's five grounds engage with the jurisdictional issue that the Applicant's application for merits review was filed more than 28 days after he was notified of the delegate's decision which deprived the Tribunal of jurisdiction. In VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; [2003] FCAFC 311 at [32]-[33] a Full Court held that filing of an application with the Tribunal within the time limit is a prerequisite to the existence of the Tribunal's jurisdiction. More recently, in Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228, [53]-[83] a Full Court held that the Tribunal has no power to extend the 28-day period.
2. As a result, even taking the grounds of review at their highest, and assuming that error could be established as to any (or all) of them, and noting that the Minister bears the onus on a summary dismissal application, I still must consider that if the Applicant is to have a reasonable prospect of successfully prosecuting his judicial review proceeding he must prove material error. The "threshold" of materiality will not be met if "there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made" (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321, [2024] HCA 12, [16]). Having regard to the grounds, even if any (or all) of the alleged errors were ultimately proved, the Tribunal still would not have had jurisdiction, and any error would not be material because the outcome would inevitably have been the same.
3. That is probably sufficient to dispose of the matter. Nonetheless, I consider the grounds in a little more detail.
4. Grounds 1 and 4 take issue with the fact that the Tribunal did not consider the underlying application for review. Because the Tribunal's first duty was to decide whether it had jurisdiction, and the Minister has satisfied me that it did not, the Minister has discharged his onus to establish that the Applicant does not have reasonable prospects of successfully prosecuting those grounds.
5. Ground 2 is a procedural fairness ground.
6. The Tribunal accorded the Applicant procedural fairness by sending its letter dated 22 January 2020 which invited the Applicant to comment on the validity of his application for merits review when it appeared to be out of time. In his response dated 3 February 2020, the Applicant did not dispute that he had lodged his application out of time on 10 November 2019 but sought to correct information he provided on 10 November 2019 which (in error) related to another person. The Applicant's response to the Tribunal's invitation to comment did not engage with the jurisdictional issue. In VEAN (at [33]) the full Court had said, "the issue is not the procedural obligations imposed upon the Tribunal in performing its review function under the Act, but whether the Tribunal had power to entertain the application for review lodged out of time".
7. Even if the Tribunal denied the Applicant procedural fairness (and the Applicant did not raise any sufficiently arguable point that it did) in circumstances in which the Tribunal had no jurisdiction the issue of any constitutional writs would be futile if it would inevitably result in the Tribunal making the same order as it made when the matter was previously before it. A denial of procedural fairness cannot invest the Tribunal with jurisdiction it did not have (see i.e., Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54, 145).
8. The Minister has persuaded me the assertion in Ground 3 that the "Tribunal member... relied on incorrect information and decided my case using facts from some other case" is inaccurate. The Applicant has not particularised the "incorrect information" to which he refers. In the absence of the identification of the inaccurate information that would give any meaningful content to Ground 3, I am satisfied that the Applicant has no reasonable prospect of successfully prosecuting Ground 3.
9. Ground 5 refers to s. 44 of the Administrative Appeals Tribunal Act 1975 (Cth) which concerns appeals to the Federal Court from decisions of the Tribunal. This court is not the Federal Court. My jurisdiction in this court arises under s. 476 of the Migration Act, not under the AAT Act. The reference to s. 44 of the AAT Act is misdirected. The Minister has proved that Ground 5 is untenable.

Did the notification letter comply with s. 66(2)(d)(ii) of the Act?

1. The only remaining issue is to consider the requirements of notification under s. 66 of the Act. When the Minister refuses to grant a visa "he or she is to notify the applicant of the decision in the prescribed way." Under s. 66(2)(d)(ii) if the applicant has a right to have the decision reviewed under Part 7 (as the Applicant did in this case) the notification must state "the time in which the application for review may be made".
2. None of the Applicant's grounds raise an issue that the notification letter did not meet the requirements of s. 66 and, in particular, s. 66(2)(d)(ii). Nonetheless, because s. 66(2)(d)(ii) has been the subject of several decisions, I consider the issue in a little more detail.
3. In DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492, [2019] FCAFC 64, Perram J held (at [57]) that the information provided in the notification letter under s. 66(2) was "either less than complete or less than clear" (DFQ17, [57]). In BMY18 v Minister for Home Affairs (2019) 271 FCR 517; [2019] FCAFC 189 (decided after DFQ17) another Full Court held that the notification as to an applicant of available review rights was "confusing and misleading" and the letter did not clearly state the matters required by s. 66(2)(d)(ii) (BMY18, [35]). In Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434, the requirements of s. 66(2)(d)(ii) were not met because the visa applicant had to piece together his review rights from disparate parts of the notification letter and therefore the information about review rights was either less than complete or less than clear. In each of DFQ17, BMY18 and Sandor the consequence was that the 28-day period did not commence, constitutional writs were issued, and the Minister had to re-notify the applicant of review rights.
4. In this case, I am satisfied that issues of this kind do not arise, and the Applicant has no reasonable prospect of success in any argument that they do. The notification letter was emailed personally to the Applicant. The information about the time to apply for review was clearly and completely stated under an apposite heading "Review rights." The applicable 28-day period was completely and clearly communicated. As noted, in any event, the Applicant made no submission as to how the requirements of s. 66(2)(d)(ii) were not met.

1. I am satisfied that because the Tribunal correctly decided that it did not have jurisdiction, the Applicant has no reasonable prospect of successfully prosecuting the judicial review proceeding. It is "untenable" in the sense explained in Spencer and there is no real question of law a factor to be decided at trial as explained in Cassimatis.
2. It is appropriate that the proceeding be summarily dismissed.
3. The next issue is the appropriate consequential orders to be made. In Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494; [2021] FCAFC 143 Allsop CJ noted at [2] the "sui generis process of the one application being dealt with first by a registrar and later by a judge in the one exercise of the judicial power of the Court".
4. The Registrar has already made an order summarily dismissing the proceeding. As a result, although I have considered the matter afresh (or de novo) so far as has proved necessary to decide whether to grant an extension of time and my reasons are set out above, my substantive order will simply be not to grant an extension of time for the Applicant to bring his review application. It is not in the interests of justice to extend time when the underlying application has no reasonable prospect of success. As a result, the Registrar's orders summarily dismissing the proceeding will remain intact and unaffected.
5. There was discussion during the hearing as to whether I needed to replicate the Registrar's procedural orders because of the replacement of the 2021 Rules by the 2025 Rules. On reflection, there is no need to remake procedural orders the Registrar has already made. The Registrar's procedural orders will be undisturbed because I have refused to grant an extension of time for the Applicant to bring his review application.
6. As to the costs before me, the Minister noted that it was not possible to itemise costs by reference to Part 3, Division 1 of Sch. 2 to the 2025 Rules which does not make an express provision for the quantification of costs as to an unsuccessful application for an extension of time to bring a review of a registrar's decision in migration proceedings. The Minister quantified the costs he sought by reference to Part 2 of Schedule 2 which applies to proceedings other than migration proceedings.
7. Given there is no corresponding scale item for an application of this kind, I will fix costs as to the application for an extension of time to bring a review application as to a registrar's decision in a lump sum under r. 32.02(c) of the 2025 Rules. I will fix the sum of $2,650. I note I am satisfied that amount is appropriate in all the circumstances. It approximates the costs which might have been ordered under items 3 and 9 of Part 2 of Sch 2 which would have been applicable in proceedings other than migration proceedings.

I certify that the preceding forty (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.