EEN25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 161

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 seeks review of a decision of Judicial Registrar Roberts (the Registrar) to summarily dismiss his application for judicial review (the substantive application) on 7 November 2025 pursuant to r 23.08(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (the Rules).
2. For the reasons set out below, the Court has found that the substantive application filed on 15 April 2025 does not have reasonable prospects of success. On that basis, the application for review of the Registrar's decision (the review application) has been dismissed.

1. The applicant is a citizen of India who arrived in Australia on 14 October 2023 (Court Book (CB) 20-21).
2. On 30 November 2023, the applicant applied for a Protection (Subclass 866) visa (the visa) (CB 12-32).
3. On 4 October 2024, a delegate of the first respondent (the Minister) refused to grant the applicant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia owes protection obligations pursuant to s 36(2) of the Migration Act 1958 (Cth) (the Act) (CB 62-70). Relevantly, the applicant was notified of the delegate's decision by way of letter sent via email that same day (CB 57-61).
4. On 1 November 2024, the applicant applied to the Administrative Review Tribunal (the Tribunal) for review of the delegate's decision (CB 71-80).
5. On 19 November 2024, the Tribunal invited the applicant to comment on the validity of his application for review, noting that the application appeared not to have been lodged within the prescribed time limit which ended on 31 October 2024 (CB 87).
6. On 3 December 2024, the applicant responded to the Tribunal to the effect that he thought he had lodged the application within the relevant time limit. The applicant acknowledged that it was a timing error on his part, and he requested that the Tribunal consider he had received the notification of the delegate's decision on 5 October 2024 rather than on 4 October 2024. (CB 88-89).
7. On 19 March 2025, the Tribunal determined that the application had not been properly made and the Tribunal therefore did not have jurisdiction to review the delegate's decision (CB 92-93).
8. On 15 April 2025, the applicant lodged an application for judicial review in this Court pursuant to s 476 of the Act.

1. The Tribunal decision under review is titled 'Notice of application not properly made' and was made by a Registrar pursuant to r 18(2) of the Administrative Review Tribunal Rules 2024 (Cth).
2. That decision is set out in full as follows:
   1. An application was received by the Tribunal on 1 November 2024 to review a decision of a delegate of the Minister for Immigration and Multicultural Affairs, dated 4 October 2024, to refuse to grant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).
   2. In accordance with the legislative requirements in force at the relevant time, for an applicant not in immigration detention on the day they are validly notified of the delegate's decision, an application for review of the decision must be made within 28 days, commencing on that day.
   3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 4 October 2024 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with statutory requirements.
   4. On 19 November 2024, the Tribunal invited the applicant to comment on the validity of the review application as the application appeared to have been lodged out of time.
   5. On 3 December 2024, the applicant responded to the invitation to comment. The applicant claimed that they made an innocent and honest mistake and that it was a 'timing error'. The applicant stated that the content of their application should determine the outcome as a matter of fairness and that it should be taken that they received the notice of decision on 5 October 2024 rather than 4 October 2024.
   6. The Tribunal has considered the applicant's submission, however, as the applicant was notified by email, they are taken to have been notified of the decision on 4 October 2024: s 494C(5) of the Act. Therefore, the prescribed period to apply for review ended on 31 October 2024.
   7. The Tribunal does not have the discretion to waive or extend the prescribed period for applying for review, even if the application has been lodged one day after the end of the prescribed period. The Tribunal notes the applicant's request to consider the content of their application, however, the Tribunal is unable to consider the merits of an application where it was not made in time.
   8. As the application for review was not received by the Tribunal until 1 November 2024 it follows that the application for review was not made in time and the application has not been properly made. The Tribunal cannot review the decision.

1. In his substantive application filed on 15 April 2025, the applicant advanced the following two grounds (without alteration):
   1. The Tribunal's decision is vitiated by jurisdiction error because the Tribunal failed to consider claims or component integers thereof that were expressly made by the first applicant or alternatively squarely raised by the material before it.
   2. The Tribunal's decision vitiated by jurisdictional error because the Tribunal failed to consider a component integer of claim.
2. By way of Response filed on 10 June 2025, the Minister applied for summary judgment in this matter on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding.
3. On 7 November 2025, the matter came before the Registrar for hearing of the summary judgment application. At that hearing, the application for judicial review was summarily dismissed by the Registrar pursuant to r 23.08(1)(a) of the Rules and the applicant was ordered to pay the Minister's costs fixed in the sum of $4,000.

1. On 28 November 2025, the applicant filed an application for review of the Registrar's decision made on 7 November 2025.
2. In that review application, the applicant raised two grounds that largely reformulate those in the substantive application. The applicant sought an order to set aside the decision of the Registrar, an order for the matter to be remitted to the Tribunal for determination according to law, and an order for costs. The affidavit filed in support of the review application submitted that the Registrar's decision was "vitiated by jurisdictional error because it failed to consider the Tribunal was unjust".
3. The hearing of the review application was held on 27 January 2026. The applicant appeared before the Court without representation but with the assistance of a Hindi interpreter.
4. The materials before the Court include:

(a) the application for judicial review filed on 15 April 2025;

(b) the affidavit of the applicant affirmed and filed on 15 April 2025, annexing a copy of the Tribunal decision;

(c) a Court Book numbering 95 pages;

(d) the application for review of a Registrar's decision filed on 28 November 2025;

(e) the affidavit of the applicant in support of the review application, affirmed and filed on 28 November 2025;

(f) the affidavit of Alana Kristina Morgante annexing a screenshot of the Department's enterprise correspondence records, affirmed and filed on 10 October 2025;

(g) written submissions relating to the substantive application, filed by the Minister on 10 October 2025; and

(h) written submissions relating to the review application, filed by the Minister on 14 January 2026.

1. The issue before the Court is whether it should aside the orders made by the Registrar on 7 November 2025. In doing so, the Court accepts the Minister's submissions regarding the Court's power to hear this application as follows:

(a) Section 256(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the FCFCOA Act) grants this Court the power to review the exercise of delegated power by a Registrar.

(b) The hearing of that review application must be conducted as a hearing de novo (r 3.08(1) of the Rules).

(c) The Court has the same power as exercised by the Registrar to summarily dismiss an application if it is satisfied that there is no reasonable prospect of the applicant successfully prosecuting the proceeding (see s 143(2) of the FCFCOA Act and r 23.08(1)(a) of the Rules (previously r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth)).

1. The principles in respect of a summary dismissal application are also well settled and conveniently summarised by her Honour Deputy Chief Judge Mercuri in AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 at [36]- [37]:

It is well settled that in considering an application for summary dismissal either under rule 13.13(a) of the Rules or under section 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), it is necessary to establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim. It is not necessary for the court to be satisfied that the applicant is bound to fail.

Nonetheless, the discretion to summarily dismiss an application must be exercised with caution, given that it is an order made at a preliminary stage in proceedings and without the benefit of fully developed evidence and argument. However, what is required is a critical examination of the available material to determine whether there is a real question of law of fact which should be decided at trial. The onus is on the party seeking the summary dismissal to persuade the court that the applicant has no reasonable prospects of success.

1. As outlined above, the applicant sought two grounds of review which contend that the Registrar erred by failing to consider the grounds in his substantive application, namely, that the Tribunal decision is vitiated by jurisdictional error because it was made without considering the full gravity of the applicant's circumstances and the consequences of his claims, and that the Tribunal constructively failed to exercise its jurisdiction by not addressing all integers of his claims.
2. At the hearing of the review application, the Court explained to the applicant the nature of a de novo hearing, meaning that the Court was essentially standing in the same position as the Registrar on the last occasion. The Court explained that it would hear arguments from each party and that the Minister may make similar arguments as they did before the Registrar. It was explained that the difficulty for the applicant, as it was before the Registrar, is that the Tribunal did not appear to have the power to hear his matter because the application to the Tribunal was filed outside the prescribed time limit.
3. The applicant was given an opportunity to expand on his grounds and to tell the Court what was wrong with the Tribunal's decision or the Registrar's decision. However, the applicant told the Court there was "no mistake or error from their end" and that it was his mistake that he was late. The applicant simply requested that he be given another chance to re-apply to the Tribunal.
4. The Minister submitted that the Court should exercise its power to summarily dismiss the review application on the basis that the applicant has no reasonable prospect of successfully arguing at a final hearing that the Tribunal's decision was affected by jurisdictional error, namely, because the Tribunal was correct to determine that it did not have jurisdiction to review the delegate's decision.
5. The Minister correctly set out that the delegate's decision was a Part-7 reviewable decision within the meaning of s 411(1)(c) of the Act at that time. Section 412(1)(b) of the Act and reg 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations) provide that the applicant must apply to the Tribunal for review of a Part-7 reviewable decision within 28 days from the date of notification of the delegate's decision, commencing on and including the date of notification (see DZAFH v Minister for Immigration and Border Protection [2017] FCCA 387 at [44]- [46], upheld on appeal in DZAFH v Minister for Immigration and Border Protection [2017] FCA 984 at [5]). It is well established that an application not made within the prescribed time limit is not a valid application and the Tribunal therefore has no jurisdiction to review the delegate's decision in such circumstances (SZULH v Minister for Immigration and Border Protection [2015] FCA 835).
6. The Act was amended on 14 October 2024 by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Item 20 in part 4 of schedule 16 to section 3 of that Act provided that if a person was entitled to make an application to the Administrative Appeals Tribunal immediately prior to 14 October 2024, then that same right carried over to the Administrative Review Tribunal as if the old law continued to apply in relation to the time for making the application, but otherwise in accordance with the new law.
7. The applicant was notified of the delegate's decision on 4 October 2024. The Court accepts that the applicant was validly notified of that decision in accordance with s 66(2) of the Act as the notification letter:

(a) was transmitted by email to the email address provided by the applicant on his visa application, being the last email address provided by the applicant to the Minister for the purpose of receiving documents (s 66(1); see also 494B(5) of the Act and reg 2.16(2D)(b) of the Regulations);

(b) specified that the applicant's visa application had been refused because he did not satisfy the criteria for the grant of a protection visa (s 66(2)(a));

(c) gave written reasons outlining why the visa had been refused (s 66(2)(c)); and

(d) under the heading 'Review Rights', advised the applicant of his right to apply for review, the time in which the application for review may be made, and where and how such application can be made (s 66(2)(d)).

1. Relevantly, the notification letter advised the applicant that an application for merits review must be made to the Tribunal within 28 calendar days commencing on the day he is taken to have received the letter. As the letter was transmitted by email pursuant to s 494B(5) of the Act, the applicant was deemed to have received it at the end of the day the email was transmitted (as per s 494C(5)). Department records filed by the Minister indicate that the email was indeed transmitted on 4 October 2024 (see Annexure AKM-1 to the affidavit of Alana Kristina Morgante dated 10 October 2025).
2. The result of this, is that the applicant was required to apply to the Tribunal on or before 31 October 2024. The applicant lodged his application on 1 November 2024. Therefore, the Minister submitted that the Tribunal was correct to find that it did not have jurisdiction to review the delegate's decision in those circumstances.
3. In both his review application and his substantive application, the applicant contends that the Tribunal failed to consider the applicant's circumstances or address all integers of his claims. However, the Minister submitted that the Tribunal was not required to consider the substantive merits of his application when determining whether it had jurisdiction to review an application (citing Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407).
4. The Court accepts the Minister's submissions. The applicant was properly notified of the delegate's decision in accordance with the relevant provisions of the Act and the Regulations. By those provisions, he was deemed to have received that notification at the end of the day on 4 October 2024. The notification letter advised him that he had 28 days within which to apply to the Tribunal for review, commencing on the day he was deemed to have received the notification. The last date on which to apply to the Tribunal, therefore, was 31 October 2024. The applicant accepted that he filed his application one day late on 1 November 2024. Whilst regrettable for the applicant, the Tribunal had no discretionary power to alter that time period or extend the time for filing an application. The Tribunal was therefore correct to conclude that it did not have jurisdiction to review the application. Furthermore, the Court accepts the Minister's submission that the Tribunal was not required to consider the applicant's claims or the merits of his application in determining whether its jurisdiction was enlivened. The Tribunal made the only decision open to it in circumstances where the application had been made beyond the prescribed time limit.
5. The Court also asked counsel for the Minister whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention. There were none.

1. For the above reasons, the Court is satisfied that the applicant does not have any reasonable prospect of successfully prosecuting his substantive application.
2. The application has failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
3. Accordingly, the application for review of the Registrar's decision is dismissed.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.