**MIGRATION** - review of Registrar's decision - where
Source
Original judgment source is linked above.
Catchwords
**MIGRATION** - review of Registrar's decision - where
Judgment (15 paragraphs)
[1]
The applicant filed no written submissions addressing whether there was a reasonable excuse for his absence from the callover on 29 October 2025. However, at the hearing he sought to expand upon the explanation he had given before Registrar Lindsay on 16 December 2025. Whereas he had previously stated that he had been prescribed antibiotics for an appendix infection, he submitted before me that he had in fact been hospitalised in May 2025 with appendicitis. He also took issue with the Minister's submission before Registrar Lindsay that there was no corroborative evidence of his treatment. The applicant explained that he had been unable to obtain such evidence because, although he had asked the hospital to issue a medical certificate, he experienced difficulty doing so: his Medicare card had expired, he made the request after his discharge, and the hospital did not provide documentation of that kind to patients who had been discharged some time earlier.
By the MS, the Minister submitted that the only documentary evidence before the Court concerning the applicant's excuse for missing the callover is attached to the affidavit of the applicant deposed on 6 November 2025: a medical certificate signed by Dr Kooi Ang of The Walk‑In GP, dated 6 November 2025, which states that the applicant 'has a medical condition and will be unfit for work/study from 06/11/2025 to 07/11/2025 inclusive'. The Minister noted that the missed callover occurred on 29 October 2025 and submitted that the certificate is therefore irrelevant to the question whether the applicant had a reasonable excuse on that date. At the hearing, Ms Ren further submitted that the applicant's oral submission of hospitalisation for appendicitis occurred approximately five months prior to the callover and is unsupported by evidence. It was accordingly submitted that the Court should not be satisfied that the applicant has established a reasonable excuse for failing to attend the 29 October 2025 callover.
I agree with, and accept, the Minister's submissions. Further, in circumstances where the applicant claims to have required medical treatment since May 2025, and had been on notice since December 2025 that corroborative evidence of that treatment would assist his case, I find it difficult to accept his explanation for failing to provide any such evidence in support of this interlocutory application. He has not produced any material capable of corroborating the nature of the medical condition or treatment said to have rendered him unable to attend the callover on 29 October 2025. Overall, I am not persuaded that the applicant has established a reasonable excuse for his absence from the callover. This factor weighs against exercising the discretion to reinstate.
[2]
The applicant again filed no written submissions on the issue. At the hearing, however, when asked to identify any disadvantage the Minister might face if the proceeding were reinstated, he accepted that the Minister had incurred costs. He submitted that any such prejudice could be addressed by an order for costs. The applicant stated that he would try his best to meet any costs ordered, although he would require additional time in which to do so.
By the MS, the Minister submitted that he has incurred, or will incur, costs preparing for and attending both the reinstatement hearing on 16 December 2025 and the present hearing, noting that the Registrar has already ordered the applicant to pay $1,739 for the 16 December 2025 hearing and that this order remains unsatisfied. It was contended that all such costs would be thrown away if the applicant's review application succeeded, and although an order for costs might partially remedy the prejudice, this would depend on the applicant's ability to pay, which is uncertain and undermined by his failure to comply with the existing costs order. The Minister also pointed to Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)[2023] FedCFamC2G 143 as recognising prejudice (albeit minimal) in comparable circumstances, and submitted that in any event the mere absence of prejudice is not, of itself, a sufficient basis to reinstate an application, referring to AHN17 v Minister for Immigration and Border Protection[2018] FCA 1598 at [34].
I agree with, and accept, the Minister's submissions. The Minister has undertaken considerable work in these proceedings, including appearance at the callover at which the applicant did not appear. This prejudice may be relieved to some extent by an award of costs, but only then if the costs are paid. Further, while the applicant expressed a willingness to pay costs at some point in the future, there is no evidence before the Court demonstrating his capacity to pay such costs. Further, the mere absence of prejudice is not a sufficient basis to exercise the discretion in the applicant's favour. In these circumstances, there is sufficient (albeit minimal) prejudice to the Minister to weigh this factor against the exercise of the discretion to re-instate.
[3]
Before turning to consider the applicant's grounds, it is convenient to first consider whether either the Tribunal's dismissal decision or its confirmation decision was affected by jurisdictional error.
[4]
In relation to the dismissal decision, the Minister submitted, both in the MS and in oral submissions before me, that the decision was not affected by jurisdictional error. A summary of those submissions follows.
For the Tribunal's discretion to dismiss an application for non‑appearance to be enlivened, two jurisdictional facts must be satisfied. First, the applicant must not appear at the relevant hearing: s 99(a) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). That requirement was satisfied in the present matter.[32] Secondly, the Tribunal must be satisfied that the applicant received appropriate notice of the date, time, and place of the hearing: s 99(b) of the ART Act. This directs attention to whether the Tribunal validly notified the applicant of those details. Under s 72(1) of the ART Act, the Tribunal was obliged to give such notice, and pursuant to s 374(1)(a) of the Migration Act, that obligation had to be fulfilled by one of the methods prescribed in s 379A of the Migration Act. One such method is transmission by email to the applicant's last-provided email address for the review: s 379A(5)(b), (d) of the Migration Act. The Tribunal complied with these requirements by emailing to the applicant's second nominated email address a letter advising that the hearing was listed for 10.30 am on 17 March 2025 at the Perth Registry.[33] The Tribunal was therefore rationally satisfied that the applicant had received appropriate notice. The Tribunal then exercised its discretion to dismiss the application, and did so reasonably. An evident and intelligible justification existed for the decision: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 366; HCA 18 at [76] (per Hayne, Kiefel and Bell JJ). The applicant had engaged minimally with the delegate, the AAT, and the Tribunal; he was validly invited to the hearing; and he had neither contacted the Tribunal to explain his non‑attendance nor sought an adjournment.
I accept these submissions and agree that the dismissal decision is not affected by jurisdictional error.
[5]
In relation to the confirmation decision, the Minister submitted, both in the MSS and in oral submissions before me, that the decision was not affected by jurisdictional error. A summary of those submissions follows.
Where the Tribunal dismisses an application, it must notify the applicant of its decision within 14 days by one of the methods referred to in s 379A of the Migration Act: s 368B(5) of the Migration Act. The Tribunal complied with that obligation by emailing the dismissal decision on 18 March 2025 to the applicant's second nominated email address. The applicant is taken to have received it at the end of that day: ss 379A(5), 379C(5) of the Migration Act. He therefore had until 15 April 2025 (being 28 days after 18 March 2025) to apply for reinstatement: s 368C(2)(a) of the Migration Act. As no reinstatement application was made within that period, the Tribunal was obliged to confirm the dismissal decision pursuant to s 368C(5) of the Migration Act.
I accept these submissions and agree that the confirmation decision is not affected by jurisdictional error.
[6]
As noted above, by his judicial review application, the applicant sought review of the Tribunal's confirmation decision. The application for judicial review pleads the following three grounds of review (reproduced below without alteration):
[7]
1, My application for review was lodged on 11 December 2020. and was denied by Administrative Reviews Tribunal on 16/04/2025 I do not think I have been treated fairly.
2, The Tribunal failed to provide a genuine opportunity to give evidence and present arguments relating to the issues arising in my review application.
3, I believe that the AAT case officer made a jurisdiction error in my case. if they consider the issue of my inability to return to my country.
[8]
At the hearing, I asked the interpreter to read the grounds to the applicant. I then asked the applicant whether he wished to expand upon those grounds or draw my attention to any part of the evidentiary material in the Court Book demonstrating error on the Tribunal's part. In response, the applicant apologised for the manner in which the grounds had been drafted, explaining that they were written by a friend because he lacks proficiency in English and had felt mentally unprepared at the time. I informed him that no apology was necessary and reminded him that this was an opportunity to identify how the Tribunal had erred in determining his review application. When asked whether he considered that the Tribunal had treated him fairly and given him a proper opportunity to present his case, the applicant replied that he believed everyone should be treated equally under the law, but ultimately said he did not know whether he had been given a fair chance. When further asked whether he believed the Tribunal had made any procedural error or had otherwise treated him improperly, he stated that he did not believe that was the case. The applicant did not expand on his grounds any further.
By the MS and oral submissions, the Minister submitted that Grounds 1 and 2, read together, are a contention that the Tribunal erred because it did not treat the applicant fairly in not giving him an opportunity to give evidence and present arguments. I agree with the Minister that these grounds cannot be sustained. As stated above, the applicant was on notice from 14 December 2020 that he should provide any supporting evidence as soon as possible. In the period of more than four years between December 2020 and the Tribunal hearing, he did not take the opportunity to do so. Further, for the reasons already given, the applicant was given valid notice of the date of his hearing, at which he would have been able to make arguments about his case if he had actually appeared. However, the applicant did not avail himself of that opportunity (and gave no reason for not doing so), so the Tribunal legitimately dealt with the matter under s 99 of the ART Act. Accordingly, Grounds 1 and 2 have no reasonable prospect of success.
In relation to Ground 3, the Minister submitted that the applicant appears to contend that the Tribunal fell into jurisdictional error by not considering what would happen to him if he returned to his country of origin. In circumstances where the Tribunal validly dealt with the matter under s 99 of the ART Act, the Minister submitted, and I agree, that it was under no obligation to consider the merits of the applicant's protection claims. As such, ground 3 has no reasonable prospect of success.
[9]
Finally, at the hearing the applicant raised a further complaint, asserting that his limited engagement with the Tribunal resulted from his reliance on a friend to relay communications sent to his second nominated email address and nominated phone number. In response, Ms Ren submitted that, by operation of the deeming provisions in s 379A of the Migration Act, the applicant was taken to have received the Tribunal's invitation on the date it was transmitted to his second nominated email address.
I accept the Minister's submission. The applicant's further complaint does not disclose any arguable basis for jurisdictional error on the part of the Tribunal.
[10]
The applicant has not provided a reasonable excuse for his failure to attend the callover on 29 October 2025, nor does his application for judicial review enjoy any prospect of success if reinstated. As such, the applicant's interlocutory application should be dismissed.
[11]
At the hearing, I heard submissions from the parties on the question of costs.
Ms Ren submitted that the Minister sought costs fixed in the amount of $2,500. When asked to explain why that amount was fair and reasonable, she submitted that the figure reflected party-party costs and the work undertaken in relation to the interlocutory application, including the preparation of submissions, affidavits, and the list of authorities, as well as preparation for and attendance at the interlocutory hearing. She further submitted that the amount sought was below the applicable scale for an interlocutory matter, which would be $4,553.02: see Item 2, Division 1, Part 3 of Schedule 2 to the Rules.
I then invited the applicant's response to the Minister's costs submission and asked whether he considered the amount fair and reasonable. The applicant stated that he understood the Minister's submissions but that the payment of such costs would be a financial burden for him at this time. I noted that, should the Minister be successful, the applicant could raise any concerns of this kind with the Minister's representatives and the Department in relation to possible payment arrangements.
Having considered the parties' submissions, I am satisfied that costs should follow the event and that the amount sought by the Minister is fair and reasonable. Whilst I acknowledge the applicant may have difficulty paying costs, the applicant's financial standing is not a sound basis upon which to rest an argument that the Minister should otherwise be denied all or part of the costs incurred in defending this matter. Impecuniosity is not a principled basis for reducing the quantum of what would otherwise be a just order as to costs: see Northern Territory v Sangare[2019] HCA 25; (2019) 265 CLR 164; HCA 25 at [35] (per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ), as applied in the migration judicial review context by Perram J in Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FCA 64 at [8]. As the High Court said in Sangare at [27]:
[12]
In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.
[13]
I will therefore order that the applicant pay the Minister's costs fixed in the amount of $2,500.
[14]
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.
[15]
[31] Affidavit of Sebastian James Long, affirmed 5 February 2026, annexure SJL-1.
Parties
Applicant/Plaintiff:
EWZ25
Respondent/Defendant:
Minister for Immigration and Citizenship [2026] FedCFamC2G 184
Legislation Cited (4)
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025
Circuit and Family Court of Australia Act 2021
[1) Act 2024
Review Tribunal Act 2024
Cases Cited (3)
The Court is to hear the present review application de novo: r 3.08(1) of the Rules. Having done so, the Court may make any order or orders it thinks fit in relation to the matter in respect of which the Registrar exercised the relevant power: s 256(2) of the FCFCOA Act.
The Court has power under r 24.04(a) of the Rules to set aside an order after it has been entered if it was made in the absence of a party. Whether or not it does so is a discretionary judgment that requires the Court to consider the interests of justice: see FSB18 v Minister for Home Affairs[2019] FCAFC 196 at [50].
Accordingly, the question for me to determine is whether or not it is in the interests of justice to reinstate the applicant's application.
Though there is no definitive list of the factors that the Court may take into account in deciding whether to exercise its discretion under r 24.04(a), Ryan J in MZYEZ v Minister for Immigration and Citizenship[2010] FCA 530 at [7] identified the following key factors: