EWT20 v Minister for Immigration and Citizenship

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. By an Application for Review filed in this Court on 19 June 2025 and accepted for filing on 24 June 2025 the Applicant seeks review of a decision of a Registrar of this Court on 18 June 2025 (Application for Review). The Registrar summarily dismissed the Applicant's application for judicial review pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) on the basis that the Applicant had no reasonable prospect of success (18 June 2025 Orders).[1]

1. The Applicant is a citizen of Malaysia. The Applicant arrived in Australia on 16 July 2013 on a travel visa which expired on 16 October 2013. The Applicant applied for a Protection (Class XA) (Subclass 866) (Visa) on 20 December 2016 (Visa Application). A delegate (Delegate) of the First Respondent (Minister) decided not to grant the Visa on 23 March 2017 (Delegate's Decision).
2. The Applicant applied to the Tribunal for review on 27 March 2017 (Merits Review Application).
3. On 25 September 2020 the Tribunal invited the Applicant to a hearing by phone on 20 October 2020 (Hearing Invitation). The Hearing Invitation was sent to the Applicant's nominated email address in the Applicant's Merits Review Application before the Tribunal. The Hearing Invitation required the Applicant to provide a completed response form at least seven (7) days prior to the scheduled hearing.
4. The hearing was held on 20 October 2020 (Tribunal Hearing). The Tribunal dismissed the Merits Review Application on the basis that the Applicant did not appear at the Tribunal Hearing on 20 October 2020 (Dismissal Decision). The Tribunal was satisfied that the Applicant had been invited to appear pursuant to s 425 of the Migration Act 1958 (Cth) (Migration Act) and was on notice that a failure to appear may result in the Tribunal dismissing the Merits Review Application without further consideration of the matter. The Tribunal observed that reminders were sent to the Applicant's nominated mobile telephone number on 13 October 2020 and 19 October 2020 and a delivery failure notification was received in response on both occasions.
5. The Tribunal recorded that it had attempted to call the Applicant's nominated mobile phone number on 20 October 2020 and received a disconnected tone. The Tribunal was satisfied that the Applicant was properly invited to attend the hearing under s 441A(5) of the Migration Act. The Applicant was notified by email via the email address on her Merits Review Application of the Dismissal Decision. This notification included advice that she could apply to have her application for review reinstated within 14 days of the Dismissal Decision.
6. On 4 November 2020 the Tribunal affirmed the Dismissal Decision (Confirmation Decision). The Tribunal found that the Applicant had not applied for reinstatement of her Merits Review Application within 14 days of the Dismissal Decision and therefore it confirmed the Dismissal Decision. The Applicant was notified on 4 November 2020 of the Confirmation Decision by email via the email address on her Merits Review Application.
7. The Applicant filed the Application for Judicial Review in this Court on 23 November 2020 (Initiating Application). The Initiating Application was accompanied by an Affidavit of the Applicant that annexed the written reasons for the Confirmation Decision. The Minister filed an Amended Response on 13 May 2025 seeking summary dismissal of the Initiating Application (Summary Dismissal Application).
8. The summary dismissal hearing was set down for 17 June 2025 (Summary Dismissal Hearing) and Orders were made on 13 May 2025 for the filing of material by both parties. The Applicant attend the Summary Dismissal Hearing with the assistance of a Mandarin interpreter.
9. On 18 June 2025 the Registrar summarily dismissed the Initiating Application pursuant to rule 13.13(a) of the GFL Rules with costs.
10. On 19 June 2025 the Applicant lodged the Application for Review, which was accepted by the Court for filing on 24 June 2025. An affidavit was filed by the Applicant in support of the Application for Review, annexing the Registrar's written Reasons for Judgment for the 18 June 2025 Orders.
11. On 27 June 2025 I made Orders listing the Application for Review for a hearing on 3 July 2025 and for the filing of an outline of submissions from each party. No outline of submissions was filed by the Applicant. The Minister filed an outline of submissions as ordered seeking dismissal of the Application for Review together with costs.
12. The Hearing of the Application for Review was held on 3 July 2025 (Review Hearing). Leave was granted for the Applicant to appear by videoconference as the Applicant resides in Perth. The Applicant appeared by videoconference with the assistance of a Mandarin interpreter. The Minister was represented by a solicitor.

1. Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides:

(1) A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:

(a) within the time prescribed by the Rules of Court; or

(b) within any further time allowed in accordance with the Rules of Court;

apply to the Court for review of that exercise of power.

1. A review application is not an appeal but rather a hearing de novo. This means that the Applicant does not have to "demonstrate any material error of fact, or principle, in the order under review" and the Court considers the matter afresh: Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39]. The task of the Court when considering a review application was described by Deputy Chief Justice McClelland in Newman & Tate [2020] FamCA 1114 at [12] as "not one of ascertaining whether, in the making of the Order, there was an error on the part of the Registrar". The review of a Registrar's determination is an original hearing in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) [2007] NSWCA 369; 71 NSWLR 61 at [43].

1. Registrar's have delegated power to summarily dismiss a proceeding. Orders can be made for summary dismissal under rule 13.13(a) of the GFL Rules or under s 143(2) of the FCFCOA Act. The Court must establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer); Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przybylowski). The Court is not required to be satisfied that the applicant is bound to fail. The party submitting the application for summary dismissal has the onus of proving that the applicant has no reasonable prospects of success.
2. Given orders are made at an early stage of the proceedings, the discretionary power to summarily dismiss an application must be exercised with caution. In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, Gaudron, McHugh, Gummow and Hayne JJ commented as follows at [57]:

[...] Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

Citations omitted.

1. The Court must undertake "a critical examination of the available material to determine whether there is a real question of law or fact which should be decided at trial": Spencer; Przybylowski; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46].
2. In the Application for Review the Applicant sought review of all the 18 June 2025 Orders. The relief sought by the Applicant was expressed in the following manner:

Details of orders sought to be reviewed

I am seeking to review all the orders on this application (copy attached). Particularly, the Court erred in its decision without considering the Tribunal's failure to send me hearing reminder by text message.

Orders sought

1. That the review is allowed
2. The orders made by Registrar Cummings on 18 June 2025 be set aside and in lieu thereof it be ordered that the application be remitted to the Tribunal for reconsideration.
3. The First Respondent pay the Applicant's costs of the review and of the application before His Honour.
4. Such further or other order as the Court sees fit.

1. Rule 21.02 of the GFL Rules provides that an application for review of a Registrar's decision must be made within seven (7) days of the exercise of a power by a Registrar. An application for review must be listed for hearing as soon as possible, and unless it is impractical to do so, within 14 days after the date of filing.[2]
2. The Registrar's Orders were made on 18 June 2025. The Application for Review was made within the time prescribed by rule 21.02 on 19 June 2025.

1. At the Review Hearing the Applicant appeared as a litigant in person with the assistance of a Mandarin interpreter. I confirmed that the interpreter and the Applicant understood each other and that the Applicant was willing to proceed with the hearing with the assistance of the interpreter. I explained to the Applicant the nature of the Review Hearing, that is being a hearing de novo, and the manner in which the hearing would be conducted. I established that the Applicant had electronic copies of the Court Book, the Minister's submissions[3], the Application for Review, the Initiating Application and the filed affidavits. The Applicant informed me that the only device she had to read the material before the Court was her mobile telephone which she was using to connect to the Review Hearing. I told the Applicant should she want to look at a document she should let me know and the Court would adjourn to allow her to do this. The Applicant did not request an adjournment to refer to documents at any time during the hearing.
2. I was satisfied that the Applicant was able to participate meaningfully in the hearing.

1. The Minister pressed the Summary Dismissal Application.
2. The question before the Court is whether any of the grounds in the Initiating Application are 'arguable', 'reasonably arguable', 'sufficiently arguable', or have 'reasonable prospects of success'. In undertaking that assessment the Court is to undertake an impressionistic examination of the grounds of review: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 at [68], citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391. A closer examination of the merits is appropriate in some cases: see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 96 ALJR 819 at [18].
3. The grounds of review in the Initiating Application (Grounds of Review) were:
   1. The Tribunal failed to notify me there is a scheduled hearing conducted by the Tribunal.

Particulars

Paragraph 2 of decision record

1. The Tribunal failed to notify me the dismissal statement in which I have a right to apply for reinstatement of the application within the 14 days period.

Particulars

Paragraph 3 of decision record

1. The Tribunal failed to afford procedural fairness.

Particulars

Paragraph 4 of decision record

1. The Minister's global submission was that all the Grounds of Review raised by the Applicant, including two (2) additional grounds raised in the Applicant's Affidavit sworn 23 November 2020, contend that the Tribunal should have invited the Applicant to a hearing by way of a different email address. The Minister submitted that none of the grounds raise an arguable case as the Applicant was properly notified by the Tribunal of the scheduled Tribunal Hearing.
2. In dealing with the Applicant's Grounds of Review it was submitted by the Minister that in the Merits Review Application filed in the Tribunal the Applicant provided a particular email address and telephone number as her address for service. No change to those contact details was notified by the Applicant to the Tribunal. The Minister accepted that on 25 May 2020 the Applicant emailed the Tribunal seeking a Medicare letter. The email address differed from the address provided to the Tribunal as her address for service. The Tribunal recorded in its own case notes that this request was received from an "unknown email address".
3. The Minister contended that s 441A of the Migration Act deals with the method by which the Tribunal can provide a person with documents. Such a method includes by email address provided by the recipient in connection with the review. Section 424A provides for information and an invitation to attend a hearing to be given in writing. Section 425A provides for an invitation to attend a hearing to be provided via a method described in s 441A, namely by email. It was submitted that this legislative scheme justifies the Tribunal continuing to correspond with the Applicant via the email and telephone number she nominated in her Merits Review Application.
4. The Minister submitted that the email provided by the Applicant in her Merits Review Application was the last email address provided to the Tribunal for the purpose of receiving correspondence and the Tribunal therefore had complied with the notification requirements. Further it was submitted that the Tribunal took all reasonable steps to contact the Applicant by SMS to remind her of the hearing date and time at the contact number provided by the Applicant in her Merits Review Application. It is accepted that these SMS notifications failed but there was nothing provided by the Applicant to the Tribunal that would indicate that there had been any change in her contact details.
5. The Minister also addressed me on the additional ground contained in the Application for Review. In the Application for Review the Applicant alleges that the Tribunal failed to send the Applicant a hearing reminder by text message. It was submitted that this claim fails on the facts. The Applicant was sent text message reminders by the Tribunal to the Applicant to the telephone number that had been provided to it by the Applicant.
6. In reply the Minister took me to the acknowledgement of receipt of the Merits Review Application sent by the Tribunal to the Applicant. Among other things that document advised the Applicant that is important that the Tribunal be notified immediately if contact details change and provided the following warning:

[...] If you do not, you might not receive an invitation to a hearing or other important information and your case maybe decided without further notice [...]

1. It was submitted by the Minister that the Applicant was validly invited to attend the Tribunal Hearing and she failed to appear. It was then open to the Tribunal to dismiss the Merits Review Application without further consideration of the application pursuant to s 426A(1A)(b) of the Migration Act. When the Applicant did not apply for reinstatement within 14 days the Tribunal was bound to confirm its decision to dismiss the application in accordance with s 426A(1E).
2. The Minister submitted that the Applicant's Initiating Application does not identify a ground of jurisdictional error and as such does not have reasonable prospects of success. In these circumstances it was submitted that the Initiating Application must be summarily dismissed.
3. At the conclusion of the Minister's submissions, I asked the Applicant about each of the Grounds of Review and why she said that she might be successful in her judicial review application. The Applicant said that she did not speak English when she arrived in Australia and is not familiar with the law. The Applicant said that she used her friend's email and phone number and it was due to her friend's lack of responsibility that she missed the Tribunal Hearing. She said that she never changed the email address or telephone number with the Tribunal.
4. The Applicant said that she discovered on her VEVO[4] the expiry day for her visa and then she realised she had missed the 14 day reinstatement period of her Merits Review application. When she discovered this, she sent an email wanting to know why her visa application was rejected.
5. The Applicant submitted that she was not afforded procedural fairness because it was unfair to her just because she had provided a friend's email address and telephone number and missed the hearing and reinstatement date.
6. When dealing with the grounds raised in the Application to Review the Applicant submitted that because the mobile number was not hers she did not receive the reminder for the Tribunal Hearing.
7. I have considered the submissions of the Minister and the Applicant. I have concluded that the Applicant's Initiating Application has no prospects of success because the Tribunal validly exercised it discretion to dismiss the Merits Review Application before it due to the Applicant's failure to appear at the scheduled Tribunal Hearing and confirmed the decision to dismiss the application when an application for reinstatement was not filed within the prescribed time frame.
8. In so far as necessary to do so I accept the Ministers submissions on Grounds 1, 2 and 3 and the additional grounds raised that they do not disclose a jurisdictional error. Firstly, the Tribunal made all reasonable efforts to notify the Applicant of the Tribunal Hearing and did so using the contact details provided by the Applicant on the Merits Review Application. Secondly, the Applicant of her own admission did not change the contact details that she provided to the Tribunal. Consequently, the Grounds of Review have no reasonable prospects of success.
9. I also accept the Minister's submission on the additional ground relied upon by the Applicant in the Application of Review that it does not disclose a jurisdictional error because, in fact, the Tribunal did send the Applicant two (2) reminders about the scheduled hearing to the telephone number provided by the Applicant in her Merits Review Application. It is clear to me that this ground also has no reasonable prospects of success.

1. I have determined that the Initiating Application has no reasonable prospects of success. The Initiating Application is to be summarily dismissed. I otherwise dismiss the Application for Review and affirm the Registrar's decision.
2. The Minister sought costs of $1,675.75 which is less than fixed in the scale amount, as prescribed in Item 2, Division 1, Part 2 of Schedule 2 of the GFL Rules. Accordingly, the Applicant is to pay the Minister's costs in the sum of $1,675.75 with respect to the Application for Review. For the avoidance of doubt the Applicant is also to pay the cost of the summary dismissal proceedings before the Registrar in the amount of $4,189.38.
3. Orders will be made accordingly.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.

[1] EWT20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 939.

[2] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 21.03.

[3] Filed by the Minister on 27 May 2025 and 1 July 2025.

[4] Visa Entitlement Verification Online.