DOZ20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1823

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. This is a review of a Registrar's decision enlivened by Division 3.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (the Rules), whereby a Registrar of this Court summarily dismissed the application.
2. The Application for Review of a Registrar's (Application for Review) decision was filed outside of the 7-day timeframe prescribed by r 3.06 of the Rules, for which the applicant seeks an extension of time. Accordingly, leave of the Court will be required to file the Application for Review.
3. For the following reasons and extension of time should not be granted and the application dismissed.

1. A decision was made by the Registrar on 25 August 2025 to summarily dismiss the matter. The applicant's Application for Review was received on 29 September 2025, outside of the 21-day timeframe permitted by r 3.06 of the Rules. This is a delay of 14 days. The applicant attributed the time delay due to his limited English, such that he did not understand it was a refusal decision. The applicant claims he believed the letter was only the notice of the soon to be delivered official refusal letter and that he only realised it was the refusal decision when he checked that his visa was close to expiry.
2. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719, the following matters were held to be relevant as to whether an extension of time should be granted:

(a) the extent of the delay;

(b) the explanation for the delay;

(c) prejudice to the respondent due to the delay; and

(d) the merits of the proposed application.

1. The extent of the delay is not great, being some 14 days. This mitigates in favour of leave being granted.
2. The applicant claims his ability to file on time was limited by his lack of English language skills. The Court accepts this may be the case. This mitigates in favour of leave being granted.
3. The first respondent properly concedes that other than as to costs, and the need for finality in administrative decision making, there is no great prejudice in leave being granted. I consider this neutral in terms of whether leave should be granted.
4. This then leaves the merits of the proposed application.

1. The applicant is a citizen of Malaysia. The applicant first arrived in Australia on 11 November 2015 on an Electronic Travel Authority (subclass 601) (ETA) visa.
2. On 15 April 2016, the applicant applied for a Protection (subclass 866) visa, claiming that he left Malaysia because he was involved in party politics against the government, that he had attended anti-government demonstrations, and if he returned, he would be labelled as anti-government, and therefore he would be mistreated socially and economically.
3. On 3 May 2016, the Department of Home Affairs (the Department) invited the applicant to provide further information and evidence in relation to his claims within 28 days. The applicant failed to respond to the invitation, nor did he contact the Department.
4. On 23 May 2016, a delegate of the Minister (the delegate) refused the applicant his protection visa. The delegate was not satisfied that the claims made were genuine as they lacked detail and evidence. The delegate found that the applicant was not someone who attracted protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).
5. On 18 June 2016, the applicant applied to the Administrative Appeals Tribunal ("the Tribunal") for a review of the delegate's decision.
6. On 6 March 2017, the applicant was invited to attend an in-person hearing scheduled for 6 April 2017. The applicant did not respond to the Tribunal and failed to attend the hearing.
7. On 7 April 2017, the Tribunal pursuant to s 426A(1A)(b) of the Act dismissed the application without further consideration of the information provided. The applicant was notified of his non-appearance and informed she could apply for reinstatement by 21 April 2017.
8. On 24 April 2017, the Tribunal pursuant to s 426A(1A)(b) of the Act confirmed the dismissal of the application for review.
9. On 30 July 2020, the applicant filed an application in the Federal Circuit Court and Family Court seeking judicial review of the decision.
10. On 6 June 2023, the Court dismissed the application for an order pursuant to s 477(2) of the Act, finding that:

(a) The Tribunal complied with the requirements of s 425A and the applicant was properly invited to the hearing: DOZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 381 (DOZ20) at [61];

(b) The Tribunal acted reasonably in dismissing the application pursuant to s 426A(1A)(b) of the Act: DOZ20 at [73];

(c) The Tribunal was required to confirm the decision to dismiss the application as no application for reinstatement was made: DOZ20 at [79]; and

(d) The substantive application was without merit and had no prospects of success: DOZ20 at [83].

1. On 22 June 2023, the applicant applied to the Tribunal for a review of the same delegate's decision for the second time.
2. On 26 June 2023, the applicant was invited to comment on the validity of his second Application for Review by 10 July 2023. The applicant was informed that the Tribunal had already previously carried out its statutory duty by reviewing the delegate's decision. Accordingly, the Tribunal reiterated that the decision was not a reviewable decision. The applicant did not respond to the Department's correspondence.
3. On 15 September 2023, the Tribunal found that it lacked jurisdiction to review the delegate's decision. The applicant sought judicial review of this decision in this Court on 3 October 2023.
4. On 25 August 2025, Judicial Registrar Roberts of this court dismissed the application for judicial review pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules), on the basis the application had no reasonable prospects of success.
5. On 29 September 2025, the applicant sought review of the Registrar's decision.

1. At [3], the Tribunal noted this Application for Review related to the same decision which was previously lodged in relation to which the Tribunal had already made a decision on 24 April 2017.
2. At [4], the Tribunal stated that it had already fulfilled its statutory duty to review the decision under the Act, thereby rendering it a non-reviewable decision: SZBWJ v Minister for Immigration and Border Protection [2008] FMCA 164 (SZBWJ) at [41]. That is, a Tribunal does not have jurisdiction to review a delegate's decision twice: Jayasinghe v MIEA (1997) 76 FCR 301; SZASP v Minister for Immigration and Border Protection [2007] FCA 771.
3. At [6], the Tribunal stated the following before concluding at [7] that it did not have jurisdiction in the matter:

As the delegate's decision has already been the subject of a valid review by the

Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer

has jurisdiction in relation to that decision.

1. The applicant advances four grounds of judicial review contained in an Origination Application filed with the Court on 3 October 2023. They are as follows (reproduced as filed):
   1. THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE.
   2. THE TRIBUNAL DEPRIVED ME OF PROCEDURE FAIRNESS.
   3. THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FROM SOME OTHER CASE.
   4. THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIN ABOUT THE TYPES OF HARM RELEVANT IN MY CASE.

1. The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that the respondent's written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
2. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
3. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court that he believed every person deserved a second chance and that was why he was seeking a second review of the Tribunal's decision.
4. At the conclusion of the respondent's oral submissions, the applicant was asked if you wish to state anything in reply. He answered "No".

1. Grounds One, Three, and Four do not engage with the Tribunal's 'no jurisdiction' decision and instead are a pleading to consider the merits of the applicant's visa application. Accordingly, these grounds do not give rise to a jurisdictional error.
2. By Ground Two, the applicant alleges that the Tribunal did not afford him procedural fairness.
3. By the notice given on 26 June 2023, the Tribunal complied with its procedural fairness obligations, including inviting the applicant to comment on the validity of his application for review: SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940.
4. While the applicant responded to the hearing invitation on 29 June 2023, he appeared to raise issues relating to the previous review application by the Tribunal dated 24 April 2017 and did not engage with the Tribunal's jurisdiction in relation to the second review application. While the Tribunal stated at [5] that '[the] Tribunal wrote to the applicant about these issues but there was no response', in actual fact, the applicant did respond to the Tribunal in an email dated 29 June 2023. However, the applicant's response did not address the issue raised by the Tribunal, that the previous Tribunal had already carried out its statutory duty to review the delegate's decision. It is not clear from the language used by the Tribunal at [5], whether it was referring to not having received any response from the applicant or not having received a response concerning the issue raised by the Tribunal. Even if the Tribunal was not aware of the applicant's response to its invitation to comment on the validity of the application, to the extent that gives rise to any error, the Court should exercise its discretion to refuse relief.
5. No useful outcome would occur if the matter was remitted to the Tribunal: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALT 609; Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82. As the delegate's decision had already been subject to a review, the Tribunal has no jurisdiction to review the decision, and therefore it would be inappropriate to remit the matter to the Tribunal.
6. Whether the Tribunal had jurisdiction was a question of jurisdictional fact that had been validly raised by the application for review: SZSKX v Minister for Immigration & Anor [2014] FCCA 157 at [6]; Corporation of the City of Enfield v Development Assessment Commission (2000) CLR 135 at [38], [50].
7. The Tribunal was not empowered to consider a second review of the delegate's decision in circumstances where the Tribunal's original review was not affected by jurisdictional error: SZBWJ at [10]; BWI18 v Minister for Home Affairs & Anor [2020] FCA 290 at [18].
8. In circumstances where the Tribunal received a valid application for review, of a reviewable decision, and carried out its statutory duty under the Act, that decision is no longer a 'reviewable decision': SZBWJ at [41].
9. The Tribunal found that it had no jurisdiction to consider the second application for review as the previous Tribunal had made a decision under s 426A(1E) to confirm its earlier decision to dismiss the application pursuant to s 426(1A)(b) of the Act.
10. The Tribunal on 24 April 2017 carried out its statutory duty to review the decision without error, and therefore the presently constituted Tribunal has no jurisdiction to review the delegate's decision.
11. Accordingly, the application for judicial review has no reasonable prospects of success and should be dismissed pursuant to r 23.08(1)(a) of the Rules, with costs.

1. Pursuant to r 3.08(1) of the Rules, this review of the Registrar's decision was heard de novo, or afresh.
2. The applicant's stated grounds of judicial review are misconceived for the following reasons. Ground One, Three, and Four seek a review of the delegate's decision.
3. The High Court relatively in LPDT v Minister for Immigration, Citizenship, Migrants Services and Multicultural Affairs [2024] HCA 12 at [15] and [29] restated the boundaries of judicial review and merits review, and the role of the Court in such an exercise:

[15]... Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker, the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained.

...

[29]... Both of these findings involved the Full Court making assumptions about how the Tribunal would have undertaken the weighing exercise of the matters in para 8.1.1(1). Such approaches should not be adopted. A reviewing court does not engage in a review_[2024] HCA 12; (2024) 418 ALR 152 at 160_ of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.

1. Additionally, in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

... an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. Nor can it reconstruct the decision-making process of the delegate or engage in assessing the reasons of the decisions made. To undertake a review of the delegate's decision, as the applicant has requested, would be transgressing the boundaries of judicial review, and slipping into merits review, which is an exercise this Court simply cannot undertake as per the confines of s 476(2) of the Act. That is, the findings made were open to the Tribunal for the reasons it gave. Ground One, Three, and Four rise no higher than an invitation to engage in impermissible merits review. Accordingly, Grounds One, Three, and Four have no merit.
2. Ground Two alleges the Tribunal failed to allow the applicant procedural fairness. Again, this Ground is misconceived. The Tribunal, having already dealt with the matter and dismissing the application in April 2017, the Tribunal exhausted its jurisdiction.
3. The subsequent attempt to relitigate the same matter could never be successful as the original delegate's decision was no longer a reviewable decision. Further, even if it appeared to the Court there was a jurisdictional error, which is not apparent, the Court agrees it would be futile to remit the matter back to the Tribunal for reconsideration as the Tribunal would be bound to make the same decision, and find it had no jurisdiction to hear the application.
4. The Court is of the view that the applicant's proceeding has no reasonable prospects of success. That is, there is no "genuine dispute" which arises as a result of these proceedings that can possibly warrant a decision in the applicant's favour.
5. As the applicant is unrepresented, the Court has perused the relevant Court Books and associated documentation. No other jurisdictional error is apparent.

1. The application for an extension of time should be dismissed on the basis that application has no merit.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.