CMC24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2010

1. These are the reasons for judgment delivered ex tempore on 2 December 2025, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor matters to reflect the intention of the Court.
2. The Court has had an opportunity to consider all the materials which have been filed, and the matters ventilated during the hearing. The Court is in a position to announce its decision.
3. This matter is a review of a decision of a registrar of this Court to summarily dismiss CMC24's application for judicial review.
4. This hearing is a hearing de novo. That is to say, this decision is not concerned with correcting any error on behalf of the registrar. Rather, it is a fresh hearing which may result in a different order having the effect of undoing or revoking the decision of the registrar.[1]

1. CMC24 (Applicant) is a citizen of Malaysia who arrived in Australia on 28 November 2017.
2. On 28 December 2017, the Applicant applied for a Protection (Subclass 866) visa (Protection Visa). The Applicant's protection claims related to him identifying as gay.
3. On 22 March 2018, a delegate of the then Minister for Home Affairs (Delegate) refused the visa application. The delegate found that the Applicant did not meet the refugee or complementary protection criteria in section 36(2) of the Migration Act.
4. By operation of section 476(2)(a) of the Migration Act 1958 (Cth) (Migration Act), this Court has no power to review the decision of the delegate.

1. On 16 April 2018, the Applicant applied to the Administrative Appeals Tribunal (Tribunal) for a review of what was described as a "WA010" decision dated 2 April 2018. It is not entirely clear what that is a reference to. No decision record was attached to the application.
2. There is nothing in the application to the Tribunal to indicate that the application was completed by a migration agent. The application listed an email address (Nominated Email Address) and phone number. The email address was different to the email address contained in the Protection Visa application. For the first time this morning, before this Court, the Applicant indicated that the email address in the application to the Tribunal was not his.
3. On 27 May 2025 and 5 August 2025, the Applicant was provided with an opportunity to file evidence in relation to this matter. He could have, but did not, file any evidence about the existence of a migration agent in April 2018. The Court is satisfied that the Applicant has had every opportunity to file material that would have supported his case before this Court. He has decided not to file any material.
4. On 17 April 2018, the Tribunal emailed the Nominated Email Address, confirming that they had received the application for review. On the same day, the Tribunal sent a further email to the Applicant, requesting a copy of the Applicant's refusal notification letter and decision record issued by the department.[2]
5. On 30 November 2023, the Tribunal emailed the Nominated Email Address requesting that he complete a prehearing information form within seven days.[3] The Applicant did not respond to any of the emails sent to him by the Tribunal.
6. On 23 February 2024, the Tribunal invited the Applicant, via the Nominated Email Address, to attend a hearing in person on 26 March 2024.[4]

1. On 26 March 2024, the Applicant failed to attend the hearing. That same day, the Applicant was notified by the Nominated Email Address of the decision to dismiss the application for review. By reason of the Applicant's failure to attend the hearing, the Tribunal affirmed the decision of the Delegate to refuse to grant a visa (Non-Appearance Decision). The Tribunal made a decision to dismiss the application under the relevant provisions of the Migration Act because the Tribunal was satisfied the Applicant was properly invited to the hearing and did not appear.[5]
2. On the day of the hearing, the Tribunal attempted to call the Applicant on his nominated contact number, however, the call failed. The Tribunal noted that the Applicant had not engaged with the Tribunal at any time since submitting the review application.[6] The Applicant was advised that reinstatement of the application could be sought within 14 days.[7]

1. On 11 April 2024, the Tribunal confirmed the decision to dismiss the application because the Applicant did not apply for reinstatement (Confirmation Decision). The Tribunal was satisfied that the Applicant had been notified of the Non-Appearance Decision.[8]
2. On 24 April 2024, the Applicant emailed the Tribunal from a different email address.[9] At the hearing before this Court, the Applicant confirmed that he sent that email. That email indicates or proves that, at any time since filing his application in the Tribunal, the Applicant could have contacted the Tribunal notifying them of different contact details. Noting that the Applicant applied to the Tribunal in April 2018, he has not explained why he did not contact the Tribunal until April 2024.
3. It seems that the Applicant now seeks to blame a migration agent. As the Court has indicated, there is no evidence on the Court file that there was a migration agent. In any case, negligence by a migration agent, does not give rise to jurisdictional error by the Tribunal.[10]
4. As stated above, on 24 April 2024, the Applicant provided the Tribunal with a completed change of contact details form.[11] That form included his personal email address. This email address was the same as the one provided in the Protection Visa application. At any time between April 2018 and April 2024, the Applicant could have provided that information to the Tribunal.
5. On 29 April 2024, the Tribunal sent copies of both the Non-Appearance Decision and Confirmation Decision to the Applicant's updated email address.

1. On 2 May 2024, the Applicant filed an application in this Court to have the Confirmation Decision of the Tribunal judicially reviewed.
2. The application was filed within the 35-day time limit prescribed by the Migration Act, and brought pursuant to section 476 of the Migration Act.[12] That section confers upon this Court in relation to migration decisions, the same original jurisdiction as the High Court under section 75(v) of the Constitution. That is, this Court may undertake judicial review in respect of matters where a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.[13]
3. The originating application filed by the Applicant on 2 May 2024 sought writs of certiorari and mandamus and contained three grounds of review.
4. On 13 June 2024, the First Respondent, the Minister, filed a response which sought, amongst other orders, that the matter be summarily dismissed.
5. On 27 May 2025, a Registrar of this Court made orders programming the summary dismissal application for hearing. Those orders included an opportunity for the Applicant to file an amended application, submissions and any further evidence. He did not do so.
6. On 5 August 2025, a Registrar of this Court made further orders. Again, the Applicant was provided with an opportunity to file materials. He did not do so.
7. On 24 October 2025, a Registrar acceded to the Minister's application to summarily dismiss the originating application. The Registrar made a further order that the Applicant pay costs in the amount of $4553.02. The note to the order made on 24 October 2025 records that, before the Registrar:

"The Applicant informed the Registrar that his primary reason for seeking judicial review was to remain residing and working in Australia."

1. On 30 October 2025, the Applicant applied to have the Registrar's use of the delegated summary dismissal power reviewed. The orders sought by the Applicant are as follows:

1. The Application for Review be allowed.

2. Orders 1, 2, 3, and 4 made by Registrar Chapman on 24 October 2025 be set aside.

3. In lieu of the orders set aside in Order 2 above, it be ordered that:

a) The First Respondent's application for summary judgment be dismissed.

b) The Applicant's judicial review application be reinstated and remitted to a Judge or Judicial Registrar for case management and hearing.

4. The First Respondent pay the Applicant's costs of this Application for Review.

5. Such further or other order as the Court deems fit.

1. The application was brought within 21 days, as prescribed by the 2025 Rules of this Court.[14]
2. On 17 November 2025, the matter was allocated to the Court as presently constituted and listed for hearing on 2 December 2025.

1. The review application was heard by Webex on 2 December 2025. The Applicant appeared on his own behalf and was assisted by a Mandarin interpreter. Having regard to the interaction between the bench and the Applicant through the interpreter, the Court is satisfied that the Applicant understood the nature of the hearing. The Minister was represented by Isabella Celata, a solicitor with HWL Ebsworth.

1. At the commencement of the hearing, the Court explained to the Applicant that the Court cannot set aside the decision of the Tribunal unless there is an arguable case of jurisdictional error. It was further explained that in a review hearing, the test to be applied is whether there is a real or genuine dispute that might reasonably be resolved in the Applicant's favour. Noting that the Applicant was unrepresented, the Court gave the Applicant an opportunity to elaborate on his grounds of review. He was provided with an opportunity to outline any other concerns he might have with the Tribunal's decision. This is now the standard procedure in this Court.[15]
2. Before the Court, the Applicant indicated that he accepted that there was no fault on behalf of the Tribunal.[16]

1. As stated, the question of whether the judicial review 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) (FCFCOA Act) provides: On 16

(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:

(4) This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.

1. The Court's power to give summary judgment is provided for in Rule 23.08.[17] The Minister bears the onus in an application for summary dismissal to establish and satisfy the Court that the claims for relief made by the Applicant in the proceeding have no reasonable prospects of success.[18]
2. Relevant to decision-making in relation to this matter is the decision of her Honour Judge Mansini in Patel v Minister for Immigration and Citizenship. Her Honour held:

39. ... [I]t 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

40. [T]he 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...

41. The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success. [19]

1. The Court respectfully adopt her Honour's reasoning.
2. In accordance with the approach taken in Patel and other similar matters, it is not necessary for this Court to engage in a detailed consideration of the grounds advanced by the Applicant. That is because it is sufficient to outline a series of indisputable facts which make clear this matter does not involve a real or genuine dispute, nor is it capable of being resolved in the Applicant's favour.
3. Those facts are those which the Court already outlined in relation to the history of the application to the Tribunal, and the correspondence between the Applicant and the Tribunal;

(a) on 16 April 2018, the Applicant applied to the Tribunal including a Nominated Email Address;[20]

(b) on 17 April 2018 and 30 November 2023, the Tribunal emailed the Applicant at the Nominated Email Address;[21]

(c) on 23 February 2024, the Tribunal invited the Applicant to a hearing by email sent to the Nominated Email Address;[22]

(d) the Applicant did not attend the hearing;

(e) the application to the Tribunal was dismissed for non-appearance;[23] and

(f) the Applicant did not seek reinstatement before the Tribunal.

1. The incontestable fact is that the Tribunal, in affirming the decision of the Delegate, made the only decision which was open to it because of the Applicant's non-appearance. The Applicant says this is not his fault,[24] however the Court is reviewing the actions of the Tribunal, and it is very clear that it is not the fault of the Tribunal. The Applicant appropriately conceded the same this morning.
2. Although it is unnecessary to do so, for completeness, the Court has considered the three grounds for judicial review contained in the originating application made on 2 May 2024 at an impressionistic level. The grounds are as follows (without alteration):

1. The Tribunal failed to notify the applicant the hearing scheduled on 26 March 2024 without compliance with s441A(5) of the Act.

2. The Tribunal erred in its findings without the applicant's appearing at the hearing.

3. The Tribunal failed to notify the applicant that he can apply for reinstatement of the review application.

1. Ground One must fail because the Applicant was properly notified of the hearing. The onus was on the Applicant to update his contact details if he sought to receive correspondence from a different email address.
2. Ground Two does not allege error as the only findings which the Tribunal made were that the Applicant was properly invited to the hearing and the Applicant did not attend. Those were the only findings open to the Tribunal to make having regard to the non-appearance of the Applicant.
3. Ground Three, like Ground One, must fail. The Court is satisfied that the Applicant was properly notified of his right to apply for reinstatement. The Tribunal cannot be faulted for sending correspondence to the email address nominated in the application to the Tribunal. The Applicant's actions in emailing the Tribunal and updating his contact details on 24 April 2024 do not assist him.
4. For these reasons, the Court is not satisfied that the Applicant has reasonable prospects of establishing that the tribunal decision is affected by jurisdictional error.
5. Because there is no real or genuine dispute that might reasonably be resolved in the Applicant's favour, the application before this Court has no reasonable prospects of success. There is no basis to have the decision of the Tribunal quashed and remitted.
6. Returning to my reasons, I am satisfied that costs should follow the event. I am further satisfied that the costs sought by the Minister are reasonable.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns.

[1] BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307, [11]. See also Bechara v Bates [2021] FCFAFC 34; [2021] FCAFC 34; (2021) 286 FCR 166, [1]-[7].

[10] Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501.

[12] Migration Act 1958 (Cth) s 477(1).

[13] EDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 826, [64].

[14] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 3.06(1).

[15] Bala v Minister for Immigration & Border Protection [2019] FCA 600.

[16] Transcript of Proceedings, CMC24 v Minister for Immigration and Citizenship (Federal Circuit and Family Court of Australia (Division 2), Judge Johns, 2 December 2025) 9, line 14-6 ('Transcript').

[17] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 3.08.

[18] Australian Securities and Investment Commission v Cassimatis [2013] FCA 641 at [45].

[19] Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 921.