DOE25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 233

Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34

Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228

BMY18 v Minister for Home Affairs (2019) 271 FCR 517; [2019] FCAFC 189

DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492; [2019] FCAFC 64

DZAFH v Minister for Immigration and Anor [2017] FCCA 387

DZE17 v Minister for Immigration and Border Protection (2019) 162 ALD 147; [2018] FCA 1521

EFX17 v Minister for Immigration and Border Protection (2019) 273 FCR 508; [2019] FCAFC 230

Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; [2009] FCAFC 117

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29

Singh v Owners Strata Plan No 11723 (No 3) (2012) 207 FCR 390; [2012] FCA 1121

Wills v Australian Broadcasting Corporation (2009) 173 FCR 284; [2009] FCAFC 6

Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. The orders made by the Registrar of the Court on 18 November 2025 are set aside.
2. Costs of the review application filed on 5 December 2025 are reserved.
3. The matter is listed for final hearing before Judge Skaros on 12 March 2026 at 2:15pm.
4. The Applicant to file and serve any amended application, written outline of submissions and evidence they wish to rely upon by 4:00pm on 26 February 2026.
5. The First Respondent to file and serve a written outline of submissions and any evidence they wish to rely upon by 4:00pm on 3 March 2026.

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).

1. By application filed on 5 December 2025, the applicant seeks review of the Registrar's exercise of the power to order summary judgment on 18 November 2025 pursuant to r 23.08 of the Federal Circuit and Family Court (Division 2)(General Federal Law) Rules 2025 (Cth) (the 2025 GFL Rules) on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding. The proceeding relates to the application for judicial review filed with the Court on 2 April 2025 seeking review of a 'decision' made by a Registrar of the Administrative Review Tribunal (the Tribunal) on 11 March 2025 that the application for review was not properly made.

1. The following background is derived from the Court Book and the Minister's submissions and, unless otherwise stated, is not in issue.
2. The applicant is a citizen of India and last arrived in Australia on 3 July 2022 as the holder of a visitor visa.
3. On 30 September 2022, the applicant applied for a Protection (Class XA) (subclass 866) visa (the visa). In that application, the applicant provided an email address and agreed to the Department of Home Affairs (the Department) communicating with him via that email address.
4. On 8 August 2024, the delegate refused to grant the visa on the basis the applicant was not a person in respect of whom Australia owed protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). The delegate's decision was sent to the applicant on 8 August 2024 by email to the email address provided in his visa application.
5. On 9 September 2024, the applicant applied to the Administrative Appeals Tribunal (the AAT), as it then was, for review of the delegate's decision.
6. On 14 October 2024, the applicant's matter was transferred to the Tribunal pursuant to the operation of Item 24 to Schedule 16 of the Administrative Review (Consequential and Transitional Provisions (No.1) Act 2024 (Cth) (the Transitional Provisions Act).
7. On 20 January 2025, the Tribunal invited the applicant to comment on the validity of his application for review by 3 February 2025 because it appeared that the application was not lodged within the relevant time limit. The applicant did not respond this invitation.
8. On 11 March 2025, the Tribunal issued a 'notice of application not properly made' in which the Registrar of the Tribunal determined that: as the application for review was not made within the prescribed time limit, it was not properly made, and therefore the Tribunal could not review the delegate's decision. The applicant was notified of the Tribunal's decision by email on 12 March 2026.

1. At [1], the Tribunal identified that the delegate refused to grant the applicant the visa on 8 August 2024. At [3], it noted the applicants had 28 days from the date of the delegate's decision to lodge an application for review with the Tribunal, that being by 4 September 2024 (at [6]); however, the applicant did not do so until 9 September 2024: at [1].
2. At [4], the Tribunal was satisfied that the applicant was properly notified of the delegate's decision on 8 August 2024.
3. At [5], the Tribunal noted that, on 20 January 2025, it wrote to the applicant informing him that his application for review did not appear to be valid because it was not lodged within the required time limit and invited him to comment on the validity of his application for review. The Tribunal noted it did not receive a response from the applicant.
4. At [7], having found that the application for review was not properly made, the Tribunal determined it could not review the delegate's decision.

1. On 2 April 2025, the applicant applied to the Court for judicial review of the Tribunal's decision. The grounds of review (without alteration) stated:
   1. The Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Migration Act 1958.
   2. The Tribunal failed to consider properly the test whether I would suffer serious harm as per s91R(2)(a) of the Migration Act.
   3. The Tribunal's decision vitiated by jurisdictional error because the Tribunal failed to consider a component integer of claims.

1. On 2 May 2025, the Minister filed a response in which an order was sought for summary dismissal of the judicial review application pursuant to r 13.13 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (the 2021 GFL Rules) on the basis that the application had no reasonable prospects of success.
2. On 1 September 2025, the 2021 GFL Rules were superseded by the 2025 GFL Rules.
3. On 24 October 2025, the Minister filed written submissions in which the orders sought were updated to reflect the amendments made in the 2025 GFL Rules. The Minister sought an order for summary judgment pursuant to r 23.08 of the 2025 GFL Rules on the basis that the application had no reasonable prospects of success. The applicant did not file any further material.
4. On 18 November 2025, a Registrar of the Court exercised their power to order summary judgment against the applicant, pursuant to 23.08 of the 2025 GFL Rules, with costs, as they were satisfied that the applicant had no reasonable prospect of successfully prosecuting the proceeding.

APPLICATION FOR REVIEW OF THE REGISTRAR'S DECISION

1. On 5 December 2025, the applicant filed an application with the Court in which he sought review of the Registrar's exercise of the power to order summary judgment.
2. On 9 December 2025, the matter was listed for hearing on 15 December 2025 at the Parramatta Registry of the Court. An email was sent to the parties informing them of the listing. The parties were requested to file and serve any additional material they wished to rely upon by 2:00pm on 12 December 2025.
3. On 12 December 2025, the Minister filed written submissions. The applicant did not file any further material.
4. At the hearing on 15 December 2025, the applicant appeared in person with the assistance of an interpreter in the Hindi and English languages. Ms K Evans of Sparke Helmore appeared on behalf of the Minister.
5. At the hearing, the court book filed by the Minister on 29 May 2025 was tendered into evidence and marked Exhibit CB.
6. Also in evidence is the affidavit of Samuel Enrico Stella affirmed on 23 October 2025 (the Stella Affidavit) annexing screenshots consisting of correspondence records demonstrating the transmission of a letter and decision record to the applicant by email on 8 August 2024.
7. Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the role of the Court in judicial review proceedings.
8. The Minister's oral submissions largely reflected their written submissions. The applicant was given an opportunity to make oral submissions on the issues for consideration, but instead he referred to the problems he had in his home country and why he applied for protection.

1. Section 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the FCFCOA Act) and r 3.01(1) of the 2025 GFL Rules provide for the delegation of prescribed judicial powers to Registrars of the Court.
2. Relevantly, Item 163 of Table 1 of Schedule 1 of the 2025 GFL Rules specifies the power under r 23.08(1), which includes the giving of summary judgment if the Registrar is satisfied that the applicant has no reasonable prospect of prosecuting the proceeding or part of the proceeding: r 23.08(1)(a).
3. Section 256(1) of the FCFCOA Act and r 3.05 of the 2025 GFL Rules provide that a party to proceedings, in which a delegate has exercised a delegated power, may apply to the Court for review of that exercise of power. The application for review must be made within 21 days after the day on which the power is exercised: r 3.06.
4. Upon reviewing the exercise of power by a delegate, the Court may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised: s 256(2).
5. The Court when conducting a review of a Registrar's decision must proceed by way of a hearing de novo: r 3.08(1). As explained by the Full Court of the Federal Court in Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 at [17] per Allsop CJ, Markovic, and Colvin JJ:

...To underpin the validity of the delegation of judicial power of the Commonwealth to a non-judicial court officer there must be a rehearing de novo before a judge of the Court (whether Circuit Court or Federal Court). The review does not hinge, or focus, upon error in the decision of the registrar. It is a hearing de novo, in which the matter is considered afresh on the evidence and on the law at the time of the review, that is at the time of the hearing de novo. The importance of the de novo rehearing is Constitutional, being the supervisory condition that enables judicial power to be delegated to a registrar.

1. This means the review is not concerned with identifying errors in the Registrar's decision and the task of the Court is to consider the Minister's application for summary judgment afresh.

1. Pursuant to s 143(2) of the FCFCOA Act, summary judgment may be given against a party in relation to the whole or part of a proceeding where the Court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. The proceeding or part of the proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success: s 143(3).
2. Rule 23.08(1)(a) of the 2025 GFL Rules provides for the Court to order judgment against the applicant if the Court is satisfied that he has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding.
3. The principles relevant to summary judgment are also well established and were helpfully set out in the Minister's written submissions as follows:

(a) The Minister as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [45].

(b) The Court's power to give summary judgment does not involve mere pleading points but is concerned with substance; Singh v Owners Strata Plan No 11723 (No 3) [2012] FCA 1121; (2012) 207 FCR 390 at [39]; citing Wills v Australian Broadcasting Corporation [2009] FCAFC 6; (2009) 173 FCR 284 at [43]-[45].

(c) The claim does not need to be "hopeless" or "bound to fail", nonetheless, the discretion must still be exercised with caution; Spencer v The Commonwealth of Australia (2010) HCA 28; (2010) 241 CLR 118 (Spencer) at [24] (per French CJ and Gummow J) and [60] (per Hayne, Crennan, Kiefel, and Bell JJ).

(d) An assessment of whether a proceeding has no reasonable prospects of success involves the making of value judgments in the absence of a full and complex factual matrix and argument, with the result that the provisions vest a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [28].

1. As stated in Spencer at [24], the power to summarily terminate proceedings must not 'be exercised lightly' and there must be a 'high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way': citing Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at [46]; citing Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57].

1. The grounds of judicial review advanced by the applicant appear to take issue with the assessment of the applicant's claims for protection. While the delegate considered the applicant's claims for protection, the Tribunal determined that it could not review the decision of the delegate because the application was not made within the prescribed time limit.
2. To the extent that the applicant's complaints are directed at the delegate's decision, this Court has no jurisdiction to review the delegate's decision, because it is a primary decision: see ss 476(2)(a) and (4)(a) of the Act.
3. As to the decision made by the Tribunal, I accept that the grounds advanced by the applicant either do not relate to the decision that was made by the Tribunal, or fail to understand the basis of that decision, and are therefore misconceived.
4. As submitted by the Minister, the question of whether the applicant's application was made to the Tribunal within the prescribed time limit, such that the Tribunal had jurisdiction, is an objective jurisdictional fact for the Court to determine: DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521; (2019) 162 ALD 147 at [24]-[25].
5. The evidence before the Court indicates that the Department notified the applicant of the delegate's decision by email on 8 August 2024 at the email address provided in his visa application, in accordance with s 494B(5) of the Act and reg 2.16(3) of the Migration Regulations 1994 (Cth) (the Regulations). By operation of s 494C(5), the applicant was taken to have received the notification at the end of that day.
6. Pursuant to s 412(1)(b) of the Act and reg 4.31(2), being the applicable provisions at the relevant time, the application for review of the delegate's decision was required to be given to the AAT within 28 days of notification. Accordingly, the applicant had until 4 September 2024 to lodge his application for review with the AAT.
7. The applicant did not lodge the application with the AAT until 9 September 2024, being four days after the prescribed period had ended. There was no provision in the Act which permitted the AAT (or the Tribunal after 14 October 2024) to disregard or extend the time limit: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; (2018) 267 FCR 15 at [49].
8. The lodgement of an application for review with the AAT within the period prescribed by the legislation was a prerequisite to the existence of the Tribunal's jurisdiction. The Tribunal was therefore correct to find at [7] that the application for review had not been properly made and that it could not review the decision.
9. For completeness, I have also reviewed the letter notifying the applicant of the delegate's decision (CB 43-44) to ascertain whether it may have suffered from any of the deficiencies identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; (2019) 270 FCR 492 (DFQ17) or BMY18 v Minister for Home Affairs [2019] FCAFC 189; (2019) 271 FCR 517 (BMY18).
10. Under the heading 'Review Rights', the applicant was informed that he could apply to the Tribunal for a merits review of the delegate's decision. He was also informed that the application for review 'must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.' It informed the applicant that as the letter was sent to him by email, he was taken to have received the letter at the end of the day it was transmitted and that the period within which he may apply to the Tribunal for merits review of the delegate's decision was a period prescribed by law and could not be extended.
11. Unlike the errors identified with the notification letters in DFQ17 or BMY18, it cannot be said that the notification letter in the present case suffered from a confusing layout or lacked clarity about the period within which the applicant must lodge his application for review with the Tribunal. It should also be noted that s 66 of the Act does not require the notification letter to specify the date by which the applicant had to lodge his application for review of the delegate's decision.
12. I am satisfied that the notification letter clearly set out the correct time limit and that it complied with the requirements set out in s 66(2)(d)(ii) of the Act.
13. As there was no error in the notification letter and the applicant was properly notified of the delegate's decision, the Tribunal had no power to review the delegate's decision.

1. The Minister sought to address further issues, which I note were not raised before the Registrar of the Court as part of the request for a summary judgment order. The issues concerned:

(a) whether the 'notice of application not properly made,' in which a Registrar of the Tribunal determined that the delegate's decision could not be reviewed by the Tribunal, was a 'migration decision', such that this Court has jurisdiction under s 476 of the Act to review it; and

(b) whether the Registrar of the Tribunal who made the decision had the power to make that decision.

1. In respect of the first matter, it can be readily accepted that the 'notice of application not properly made' issued on 11 March 2025 by the Tribunal is a migration decision and that this Court has jurisdiction to review that decision.
2. A 'migration decision' is defined in s 5 of the Act as:

(a) a privative clause decision; or

(b) a purported private clause decision; or

(c) a non-privative clause decision; or

(d) an ART Act migration decision.

1. A 'privative clause decision' is defined in s 474(2) of the Act to mean:

... a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4), (4A) or (5).

1. Section 474(3) also explains that a reference to a 'decision' in s 474 includes reference to the following:

(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;

(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

(d) imposing, or refusing to remove, a condition or restriction;

(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article;

(g) doing or refusing to do any other act or thing;

(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

(j) a failure or refusal to make a decision.

1. The Court accepts, as submitted by the Minister, that the operation of s 474(3) of the Act is such that the meaning of 'decision' is expanded to include any action or inaction that is taken under the Act and there are many examples in this Court, and higher courts, of actions, inactions, assessments or notices made, or required to be made, under the Act, which have been the subject of judicial review: see Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (SZSSJ) at [65]-[66] and [68]; EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230; (2019) 273 FCR 508 at [37]-[40], [170] and [216].
2. The 'notice of application not properly made' issued on 11 March 2025, in which the Tribunal determined that it could not undertake a review of the delegate's decision because the application for review was not made in time, can be described as a refusal 'to do any other act or thing' or 'a failure or refusal to make a decision', as provided for in ss 474(3)(g) or (j). It is a decision of 'an administrative character made, proposed to be made, or required to be made' under the Act: s 474(2). Accordingly, this Court has jurisdiction in respect of the application for judicial review of that decision.
3. In respect of the second matter, the issue is not so straightforward.
4. I accept, as submitted by the Minister, that the question of the Tribunal's jurisdiction was to be determined by considering whether the application for review of the delegate's decision was validly made under the Act as in force at the time the application was made. Relevantly, s 412 of the Act, as in force on 9 September 2024, required the applicant to lodge his application for review to the AAT by 4 September 2024.
5. The review application was not finalised before the transition time, and the matter was transferred to the Tribunal on 14 October 2024. The Transitional Provisions Act provides that any proceeding before the AAT that was not finalised before the transition time must be continued and finalised by the Tribunal. It also provides that the Tribunal, 'as far as possible', continue the proceedings under the 'new law'. The Tribunal was required to act on the basis that anything done in relation to the proceeding prior to the transition period, continued to have the effect for the purposes of, or in relation to the proceeding, as if it had occurred after the transition period: Item 24 of Schedule 16 to the Transitional Provisions Act.
6. The decision made on 11 March 2025, in which the Tribunal determined that the application for review was not properly made, was a decision of a Registrar of the Tribunal. The Minister submitted that the Registrar was exercising powers and performing functions of the Tribunal, including ss 347 and 348 of the Act, which deal with jurisdiction of the Tribunal. It was submitted that the Registrar was required to consider whether the application had been made within the prescribed time, and that the Registrar correctly found that the application was out of time under the legislation as in force at the time of application: s 412 of the Act and r 4.31(2) of the Regulations.
7. I have some difficulty with this submission because the powers delegated to Registrars of the Tribunal do not appear to encompass determining whether an application for review of a decision to refuse to grant the applicant a protection visa had been properly made under s 412 of the Act.
8. Section 285(1)(b) of the Administrative Review Tribunal Act 2024 (Cth) the (ART Act) provides for the President of the Tribunal to authorise a Registrar of the Tribunal to perform or exercise a function or power of the Tribunal that is prescribed in the rules. Relevantly, subrule 18(2) of the Administrative Review Tribunal Rules 2024 (Cth) (the ART Rules), provides:

For the purposes of paragraph 285(1)(b) of the Act, a registrar may be authorised to determine, for the purposes of section 348 of the Migration Act 1958 , whether an application to the ART for review of a reviewable migration decision or a reviewable protection decision is properly made under section 347 or 347A of the Migration Act 1958

1. A plain reading of this provision suggests that the Registrar powers were limited to determining whether an application for review of a 'reviewable protection decision' was validly made 'under s 347 or 347A of the Act'. In the present case, the determination had to be made by reference to the relevant provision at the time of the application for review, which was s 412 of the Act. It is not apparent from the provisions in the Transitional Provisions Act relied upon by the Minister, namely Item 24(1)-(4) and (6) of Schedule 16, that the powers of the Registrar to determine whether an application for review of a protection decision was properly made under s 347 or 347A of the Act would encompass applications for review made under s 412 of the Act prior to the commencement of the ART Act.
2. While the provisions in Item 24(1)-(4) and (6) of Schedule 16 to the Transitional Provisions Act would facilitate a member of the Tribunal determining the issue of the Tribunal's jurisdiction in respect of applications lodged before 14 October 2024, I have not been persuaded that this equally applies to Registrars of the Tribunal, given the limitation on the exercise of their powers as prescribed in the ART Rules.
3. If the Registrar of the Tribunal did not have the requisite authority to make the decision that was made on 11 March 2025, this raises an issue about the legal validity of that decision.
4. The Minister contends that it is irrelevant whether the Registrar had the authority to issue the decision, or whether the decision contained any other error, in circumstances where the Court determines that the Tribunal did not have jurisdiction to conduct the review. This, the Minister contends, is because no such 'defect or error' could, in the circumstances, be considered material. I am not persuaded by this submission.
5. The 'error' or 'defect' (as described by the Minister) in the present case is not one of 'procedural irregularity', such as those provided for in s 368 of the Act. Procedural irregularities may be non-jurisdictional if immaterial, however, an 'error' or 'defect' with respect to the exercise of a power (by a person who lacked the requisite legislative authority) is inherently jurisdictional and thus material.
6. While the circumstances of the case may give rise to an issue of futility/utility, this was not expressly raised by the Minister in their submissions and, in the circumstances, it would not be appropriate to consider this issue as part of a summary judgment.

1. While I have accepted, for the reasons discussed above, that the application for review of the delegate's decision was lodged with the AAT after the prescribed period had ended and that the Tribunal did not have jurisdiction to review that decision, I am not persuaded that this of itself provides a sufficient basis to order summary judgment against the applicant in respect of the substantive proceeding.
2. The present case raises a question about whether the Registrar of the Tribunal had the requisite delegation or power to determine whether the application for review had been properly made. The powers delegated to Registrars of the Tribunal have not previously been the subject of judicial consideration and the proper exercise of that power raises a justiciable issue that warrants consideration by the Court on a final basis.
3. For these reasons, I will set aside the orders made by the Registrar of the Court on 18 November 2025 and will have the matter listed for final hearing to consider whether the decision of the Tribunal made on 11 March 2025 is affected by jurisdictional error and if so, whether the relief sought should be granted.
4. I will also put in place timetabling orders to provide for the parties to make submissions in support of their respective positions having regard to the matters discussed in this judgment.
5. In respect of costs, the order for costs made by the Registrar of the Court on 18 November 2025 will also be set aside and the costs of the application for review of the Registrar's decision filed on 5 December 2025 will be reserved.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.