EIZ25 v Minister for Immigration and Citizenship

1. Before the Court is an Application for Review of a Registrar's decision filed on 1 December 2025 (Review Application).
2. The application before the Registrar was an application by the first respondent (Minister) for summary judgment of the applicant's application for judicial review filed on 23 April 2025 (Substantive Application).
3. On 31 October 2025, the Registrar made orders for there to be judgment for the Minister against the applicant and for the Substantive Application to be dismissed pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), and r 23.08(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 GFL Rules). The Registrar further ordered that the applicant pay the Minister's costs fixed in the sum of $4,553.02.
4. Rule 3.08(1) of the 2025 GFL Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, the Minister's application for summary judgment (Summary Judgment Application) is to be considered afresh.

1. The applicant is a citizen of Malaysia.
2. On 24 May 2019, the applicant arrived in Australia on a visitor visa.
3. On 25 July 2019, the applicant applied for a Protection (Class XA) (Subclass 866) visa (Visa).

1. On 4 May 2020, a delegate of the Minister (Delegate) refused to grant the Visa on the basis that the applicant did not satisfy ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Act).

Application for review at Tribunal on 16 May 2020

1. On 16 May 2020, the applicant applied to the Administrative Appeals Tribunal, as it then was (Tribunal), for review of the Delegate's decision. In the application for review, the applicant nominated the email address for correspondence (First Email Address). The application for review also contained a phone number and an address located in Coffs Harbour as the applicant's nominated postal address (Postal Address).
2. On 23 April 2024 and 26 August 2024, the Tribunal emailed the applicant via the First Email Address. On the first occasion the Tribunal requested that the applicant complete a 'Pre-Hearing information form' within seven days of receiving the email and on the second occasion the Tribunal referred the applicant to several legal providers who may be able to assist the applicant. On each occasion, the Tribunal received a notification that the email had been returned to sender.
3. On 14 January 2025, the Tribunal wrote to the Department of Home Affairs (Department) stating that they were unable to make contact with the applicant and sought that the Department provide the most recent contact details it had on file for the applicant. The Department responded and provided the same telephone number that was used in the applicant's application for review, in addition to the following email address (Second Email Address), which had been provided as a secondary email address in the applicant's Visa application.
4. On 15 January 2025, the Tribunal sent an invitation to the applicant at the Postal Address, inviting the applicant to attend a hearing scheduled for 10 February 2025 at 2.00pm (Hearing Invitation). The Tribunal also sent a copy of the Hearing Invitation to the Second Email Address.
5. On 3 February 2025 and 7 February 2025, the Tribunal attempted to send the applicant an SMS hearing reminder, notifying the applicant of the hearing scheduled for 10 February 2025. On both occasions the text messages failed to send.
6. On 10 February 2025, the applicant did not attend the hearing.
7. On 13 February 2025, the Tribunal dismissed the applicant's application for review for non-appearance pursuant to s 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) and issued its statement of decision and reasons (Dismissal Decision).

1. On 14 February 2025, the Tribunal sent a copy of the Dismissal Decision to the applicant's First Email Address. The Tribunal also sent copies of the Dismissal Decision to the applicant's Postal Address and the Second Email Address. In the cover email notifying the applicant of the Dismissal Decision, the Tribunal advised that the applicant could apply for reinstatement of her application by 14 March 2025 and further stated that if she failed to apply for reinstatement by that date, the Tribunal was compelled to confirm the Dismissal Decision.
2. The applicant did not apply for reinstatement.
3. On 18 March 2025, the Tribunal confirmed the Dismissal Decision and issued its statement of decision and reasons (Confirmation Decision).
4. On 19 March 2025, the Tribunal sent a copy of the Confirmation Decision to the applicant's First Email Address in addition to the applicant's Postal Address.
5. On 26 March 2025, a telephone call was made to the Tribunal by an individual who identified themselves as the applicant and the Tribunal concurrently recorded the following transcription of the conversation:

Applicant was on the line and advised that the last thing he had received from his agent was the hearing notice and that he required the decision to apply at the federal court. I advised that the decision was sent out however a return to sender had been received so the documents were then posted to the address on file. I then asked if he had changed addresses to which he confirmed. He advised that the email was chris888@outlook.sg. I asked if this was his email address. He advised that it was his agents. I then advised that as the case has been finalised, we cannot make any changes to the contact details and that an FOI Form will need to be completed and submitted either online or via email for the documents to be released to him. He asked how long the timeframe would be as his visa had already expired. I advised I was unsure however he could ask in his email. I also advised for him to include all his new contact information. He confirmed he understood and thanked me for my time. End of call.

1. On 10 April 2025, the Tribunal received an email from the email address which stated the following (without amendment):

Case number:

2008341

Requests a copy of decision on my personal email

nglihoon3@gmail.com

The old email im not longer used because that is agent email.

I can't access all my document of decision.

1. At paragraphs [9] - [10] of the Dismissal Decision, the Tribunal found that the applicant was invited to the hearing by post pursuant to s 379A of the Act to appear before it on 10 February 2025 at 2.00pm but the applicant did not appear at the scheduled time and place. The Tribunal found that the applicant received appropriate notice of the date, time and place of the hearing and provided no reason for her non-appearance nor had an adjournment been sought by the applicant.
2. At paragraph [11] of the Dismissal Decision, the Tribunal noted that the matter had been on foot for over four years and that no contact had been made by the applicant since the application for review was lodged. The Tribunal further noted that it had attempted to communicate with the applicant using every known method of communication but the applicant had chosen not to keep the Tribunal informed of her contact details and thereby considered it reasonable to proceed to dismiss the application.
3. At paragraph [12] of the Dismissal Decision, the Tribunal dismissed the application without further consideration of the application or the information before it.

1. On 18 March 2025, the Tribunal confirmed its decision to dismiss the application for review of the Delegate's decision and consequently affirmed the Delegate's decision pursuant to s 368C(6) of the Act.
2. The Confirmation Decision is short and makes note of the application before it at paragraph [1]. At paragraph [2] of the Confirmation Decision, the Tribunal records that the Tribunal dismissed the application under s 99 of the ART Act as a result of the applicant failing to appear before it at the time and date of the scheduled hearing, being 10 February 2025.
3. At paragraphs [3] - [4] of the Confirmation Decision, the Tribunal found that the applicant was notified of the Dismissal Decision to dismiss the application and that the applicant was given a copy of the decision in accordance with s 368B(5) of the Act. The Tribunal further noted that the applicant did not apply for reinstatement of the application within the 28-day period and as such, the Tribunal was required to confirm the decision to dismiss the application pursuant to s 368C(5) of the Act.

1. On 23 April 2025, the applicant filed the Substantive Application.
2. In the Response filed 2 July 2025, the Minister sought that the Substantive Application be summarily dismissed pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 GFL Rules) on the ground that the applicant had no reasonable prospects of successfully prosecuting the proceeding.
3. On 25 September 2025, orders were made by a Registrar of this Court listing the Minister's Summary Judgment Application for hearing on 31 October 2025. Procedural orders were also made for the filing of written submissions and any additional evidence upon which the parties sought to rely.
4. On 23 October 2025, the applicant filed an affidavit and written submissions.

1. The Summary Judgment Application was heard by the Registrar on 31 October 2025. On the same day, the Registrar made orders that there be judgment for the Minister against the applicant for the whole of the applicant's claim pursuant to s 143(2) of the FCFCOA Act, and r 23.08(1)(a) of the 2025 GFL Rules, and that the Substantive Application be dismissed. The Registrar also ordered the applicant to pay the Minister's costs, fixed in the amount of $4,553.02. The Registrar settled their reasons into judgment on the same day: EIZ25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1808 (Registrar's Decision).
2. Rule 23.08(1)(a) of the 2025 GFL Rules provides that:

(1) The Court may order that judgment be given against a party if the Court is satisfied that:

(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

1. Section 143(2) of the FCFCOA Act provides that:

(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.

1. In Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 the majority in the High Court said at [59]:

In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power...

(Emphasis added.)

APPLICATION FOR REVIEW OF A REGISTRAR'S DECISION

1. Rule 3.06(1) of the 2025 GFL Rules provides that an application for review of a Registrar's decision must be made within 21 days. Rule 1.15 of the 2025 GFL Rules provides that time may be extended by the Court.
2. The Registrar's Decision was made on 31 October 2025. An application for review of that decision in this Court was therefore required to be made no later than 21 November 2025. The Review Application was not lodged until 25 November 2025 and was not accepted for filing until 1 December 2025.
3. Accordingly, the Review Application was lodged four days after the expiry of the statutory timeframe and accepted for filing ten days after the expiry of the statutory timeframe.

Should the Court be satisfied to make an order extending time?

1. The discretion of the Court to extend the time for the filing of an application for review is broad but must be exercised in the interests of justice. It will not be in the interests of justice to extend time for the bringing of a review application "if the substantive application does not have sufficient prospect of success to make it just that the prospective appellant be permitted to proceed with it" e.g., in another context, WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399, [9].
2. The principles to be applied in considering whether to extend time are well established and were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found that the Court has an obligation "to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice". Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time - although it is noted that this list is not exhaustive:

(1) the extent of the delay and the explanation for it;

(2) any prejudice to the respondent if an extension were granted; and

(3) the merits of the substantive application.

1. The delay is short, being a period of approximately four days if the date of lodgement is used and ten days if the date of acceptance for filing is used.
2. The applicant relied on her affidavit filed 1 December 2025 in support of the Review Application (December Affidavit). In the December Affidavit, the applicant provides an explanation for the delay in filing as follows (without amendment):

...

3. The deadline to file my Application for Review was 21 November 2025.

1. I attempted to file my Application for Review and my supporting affidavit on 20 November 2025 through the Court's online filing system.

2. On 24 November 2025, the Registry rejected both documents because they were not properly signed or witnessed and because the required annexure was not attached.

3. Once I became aware of the rejection, I acted promptly to correct the issues identified by the Registry.

4. The errors were unintentional. I am self-represented, and English is not my first language. I have now prepared a fresh affidavit that complies with the Rules.

8. I respectfully request the Court grant an extension of time because:

(a) I attempted to file within time.

(b) the delay was caused by procedural mistakes, not a lack of diligence.

(c) I acted quickly once notified; and

(d) the Minister will suffer no prejudice if the extension is granted.

1. I believe it is in the interests of justice that my Application for Review be allowed to proceed.

1. There is no evidence before the Court to support the applicant's explanation as to the late filing. She has not provided any correspondence between her and the Registry to support her assertion that she attempted to file on 20 November 2025 or that the Registry rejected that attempted filing on 24 November 2025. The material before the Court simply indicates that the Review Application was not lodged until 25 November 2025 and was not accepted for filing until 1 December 2025.
2. As to the applicant being self-represented and English not being her first language, these matters cannot provide a satisfactory explanation for the delay. In the migration jurisdiction of this Court, many, if not most, applicants are self-represented and speak a language other than English as their first language.
3. Accordingly, I do not consider that the applicant has provided a satisfactory explanation for the delay.
4. This weighs against the grant of an extension of time.
5. Notwithstanding the absence of a satisfactory explanation for the delay, given the modest period of the delay, had I been persuaded that the grounds of review had a reasonable prospect of success I would have been inclined to grant an extension of time. However, for the reasons set out below, I do not consider the grounds of review to have any reasonable prospect of success.

1. The Minister properly contends that it would not suffer any particular prejudice, other than as to costs, if an extension of time were granted.
2. However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC at [6].
3. I consider this to be a neutral consideration.

1. The Substantive Application for judicial review filed on 23 April 2025, raises three grounds of review. Those grounds are as follows (without amendment):
   1. THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTION ABOUT THE TYPE OF HARM RELEVANT IN MY CASE

2. THE TRIBUNAL, DESPRIVED ME OF PROCEDUR FAIRNESS

1. ACCORDING IN SECTION 44 OF THE ADMINISTRATIVE APPEAL TRIBUNAL ACT 1972 THERE IS A DESCRIPTION AND AUTHORIZING ME TO MAKE SUCH ACTION APPEAL TO FEDERAL CIRCUIT COURT

1. The applicant also relied on an affidavit filed 23 October 2025 (October Affidavit) and the December Affidavit which raise new and additional grounds to her Substantive Application, including that:

(1) the migration agent she had engaged for assistance with her application for review failed to update her contact and notification details and consequently, the applicant did not receive the Hearing Invitation, nor any of the other communication from the Tribunal or the Department; and

(2) the applicant changed her telephone resulting in the loss of all of her old messages and emails, including anything related to her migration agent and thus she no longer has proof of any communication between the applicant and her migration agent.

Tribunal may dismiss application if applicant does not appear

If:

(a) the applicant fails to appear at a Tribunal case event that relates to a proceeding in relation to an application; and

(b) the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event;

(5) The ART must notify the applicant of the decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:

(a) within 14 days after the day on which the decision is taken to have been made; and

(b) by one of the methods specified in section 379A.

1. It is convenient to address both Grounds 1 and 2 together. For the following reasons, they have no reasonable prospect of success.
2. Firstly, these grounds are template grounds which this Court has seen on many occasions. They fail to engage with the Tribunal's decision in any meaningful way.
3. Secondly, both grounds are entirely unparticularised. This alone is a sufficient basis to dismiss these grounds: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24].
4. Thirdly, at the hearing the applicant could not further articulate Ground 1. To the extent that Ground 1 alleges that the Tribunal did not ask the applicant questions about the type of harm, this ground is misconceived. The Tribunal was not required to consider the merits of the application in circumstances where the applicant's application was dismissed for non-appearance pursuant to s 99 of the ART Act and the Tribunal was bound to confirm that decision pursuant to s 368C(5) of the Act where the applicant had not sought reinstatement within the 28-day period provided in s 368C(2) of the Act.
5. Fourthly, as to the allegation in Ground 2 that the Tribunal deprived the applicant of procedural fairness, at the hearing the applicant submitted that she was deprived of procedural fairness because she did not receive the Hearing Invitation. This submission must be rejected. The evidence before the Court establishes that the Hearing Invitation was sent to the applicant at the Postal Address, being the address provided in her application: see s 379A(4) of the Act. It was also sent to the Second Email Address.
6. Accordingly, Grounds 1 and 2 have no reasonable prospect of success.
7. For completeness, on the evidence before the Court, the power of the Tribunal to make the Dismissal Decision and the Confirmation Decision were enlivened, and those decisions disclose no error on the Tribunal's behalf.
8. As submitted by the Minister, in making the Dismissal Decision the Tribunal satisfied itself that:

(1) attempts had been made to correspond with the applicant at the First Email Address and phone number to no avail;

(2) the Tribunal had made further attempts to put the applicant on notice of the hearing by sending the invitation to her Postal Address as well as to an alternative email address provided by the Department (the Second Email Address);

(3) the Hearing Invitation put the applicant on notice of the consequences for non-appearance;

(4) the applicant had been notified of the hearing by post in accordance with s 379A(4) of the Act and the Tribunal was satisfied that the applicant had received appropriate notice of the date, time and place of the hearing;

(5) the applicant had not engaged with the Tribunal at any stage over the four years that the matter was on foot and had failed to keep the Tribunal informed of her contact details; and

(6) given the above circumstances, dismissal without further consideration of the application or information before it was suitable.

1. Further, as also submitted by the Minister, the Dismissal Decision and the reasons for it were sent to the First Email Address on 14 February 2025 and courtesy copies were also sent to the applicant at the Postal Address as well as the applicant's Second Email Address.
2. I consider that the Dismissal Decision was reasonable and one open to the Tribunal for the reasons it gave at paragraph [11] of its decision.
3. Further, pursuant to s 368B(5) of the Act, the Tribunal was required to notify the applicant of the Dismissal Decision. The Tribunal's notification letter dated 14 February 2025 complied with the legislative requirements because it:

(1) provided the applicant with a copy of the Dismissal Decision pursuant to s 368B(5) of the Act;

(2) was sent within 14 days of the Dismissal Decision that was made on 13 February 2025 pursuant to s 368B(5) of the Act; and

(3) complied with s 379A of the Act by transmitting the document by prepaid post, within three working days of the date of the document, to the last address for service provided to the Tribunal by the recipient in connection with the review.

1. As submitted by the Minister, the statutory scheme confers an obligation on the Tribunal to confirm the decision in circumstances where there is no reinstatement application made by the applicant pursuant to s 368C of the Act. It was open to the applicant to apply for reinstatement of her application. As the applicant did not adopt such a course of action and apply for reinstatement within the 28-day period, by 14 March 2025, the Tribunal had no discretion and was required to make a confirmation decision: AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10] per Perram J.

1. By Ground 3, the applicant appears to recite appeal rights pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Notwithstanding the fact that the AAT Act is no longer in force, Ground 3 does not establish jurisdictional error on the part of the Tribunal. The applicant is entitled to make an application to appeal the decision of the Tribunal pursuant to s 172 of the ART Act and has indeed done so.
2. Accordingly, Ground 3 also has no reasonable prospect of success.

New grounds raised in October Affidavit and December Affidavit

1. By these grounds the applicant contends, in summary, that she was assisted by a migration agent and that the agent failed to update her contact details and consequently she did not receive any communications from the Tribunal.
2. For the following reasons, these new grounds have no reasonable prosects of success.
3. Firstly, the material before the Court does not disclose that the applicant was represented by an agent at any time. Secondly, even if it be the case that she was so represented and the agent failed to update the applicant's contact details as asserted, I am unable to see how this vitiated the Tribunal's decisions. The applicant does not contend that the agent engaged in fraud, and it is well established that mere negligence, oversight or mistake is insufficient to vitiate the Tribunal's decisions: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189. Thirdly, the applicant's evidence is that she no longer knows how to contact the agent, has lost her telephone and all her messages with the agent and has no ability to prove any communications with the agent. Accordingly, on the applicant's own evidence there is an insufficient evidentiary basis to make out a case of jurisdictional error in the form of third-party fraud.

1. For the reasons set out above, the Minister has established that the applicant has no reasonable prospects of successfully prosecuting their claim for relief. The Summary Judgment Application must therefore succeed. As the Substantive Application has no reasonable prospect of success, it is not in the interests of justice to extend the time for bringing the Review Application.
2. The Registrar's orders made on 31 October 2025 dismissing the Substantive Application remain in full force and effect.

1. Accordingly, the application for an extension of time to review the decision made by a Registrar on 31 October 2025 is refused and the Review Application is otherwise dismissed.
2. The Minister made no application as to costs. However, I am satisfied that costs should follow the event in the usual way. I shall order that the applicant pay the Minister's costs in an amount to be fixed, if not agreed.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.