EZA21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1648

1. The applicant, allocated the pseudonym EZA21, is a citizen of the People's Republic of China who applied to the Department of Home Affairs (Department) for a Protection (subclass 866) visa on 28 February 2020 (the visa application).
2. The visa application was refused by a delegate of the Department (the delegate) on 24 February 2021 (the primary decision).
3. The applicant applied to the (then) Administrative Appeals Tribunal (now Administrative Review Tribunal (Tribunal)) on 5 March 2021 for review of the primary decision.
4. On 7 December 2021, the Tribunal dismissed the application for review pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the Act) after the applicant had failed to attend the Tribunal hearing of her application (the first Tribunal decision). After the applicant failed to seek reinstatement of her application within 14 days of being notified of the dismissal, the Tribunal, on 22 December 2021, confirmed the decision dismissing the application for review (the second Tribunal's decision). The instruction to do so was in s 426A(1E) of the Act, as then in effect.
5. The applicant then made an application to this Court pursuant to s 476 of the Act for judicial review of the Tribunal's decision on 28 December 2021. In response to that application, the first respondent sought an order that the application be dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (as was applicable at the relevant time of the application) (the 2021 GFL Rules) on the basis that the application had no reasonable prospect of success (interlocutory application).
6. A Registrar of this Court made orders on 28 May 2025 following a hearing of the interlocutory application, summarily dismissing the applicant's application to this Court pursuant to r 13.13(a) of the 2021 GFL Rules (the Registrar's decision).
7. By application pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) made on 5 June 2025 (accepted for filing on 10 June 2025), the applicant now seeks review of the Registrar's decision.
8. For reasons which follow, that application for review should be dismissed.

1. At the hearing before this Court on 7 July 2025, a court book comprised of relevant documents from the Department's file and the Tribunal concerning the visa application and the review application was received into evidence without objection.
2. The Court also received into evidence an affidavit of Lily Joelle Butterfield, lawyer under the employ of MinterEllison, affirmed 28 April 2025. This affidavit was received without objection and Ms Butterfield was not required for cross-examination. The affidavit annexed a further Tribunal document that had not been included in the court book, namely, the Tribunal's case summary.
3. In addition, the Court received two affidavits made by the applicant: one made 12 December 2021 that had been filed along with the originating application to this Court and which annexed the Tribunal's decision dated 7 December 2021, and one made 30 May 2025 that had been filed along with the application for review of the Registrar's decision and which annexed the Registrar's orders and the Tribunal decision dated 7 December 2021. The first respondent did not require the applicant for cross-examination.

1. The application before the Registrar was conducted in accordance with the 2021 GFL Rules. The 2021 GFL Rules were in effect until 1 September 2025, when the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (the 2025 GFL Rules) came into effect. There has been no relevant change which affects either the approach to be taken by the Court in the conduct of the present review or the circumstances that enlivens the Court's discretion to summarily dismiss an application.
2. As the application seeks review of a decision made by a Registrar exercising delegated powers, a hearing de novo of the first respondent's interlocutory application is required: r 21.04 of the 2021 GFL Rules. Rule 3.08 of the 2025 GFL Rules, by slightly different language, requires the same. The first respondent must, in effect, prosecute its interlocutory application again.
3. The power to summarily dismiss an application is found in s 143 of the FCFCOA Act, which provides, relevantly, as follows:

(1) 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 prosecuting the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(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.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

(4) This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.

(5) This section does not apply if the Federal Circuit and Family Court of Australia (Division 2) is exercising jurisdiction under the Family Law Act 1975.

Note: For the power of the Federal Circuit and Family Court of Australia (Division 2) to give summary judgment if the Court is exercising jurisdiction under the Family Law Act 1975, see section 102QAB of that Act.

1. Rule 13.13 of the 2021 GFL Rules provided as follows:

13.13 Disposal by summary dismissal

The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

(b) the proceeding or claim for relief is frivolous or vexatious; or

(c) the proceeding or claim for relief is an abuse of the process of the Court.

1. The present analogue of r 13.13 is r 23.08 of the 2025 GFL Rules. It retains a discretion in the Court to order judgment against an applicant who has "no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding".
2. The qualification in s 143(3) of the FCFCOA Act (namely, that the proceeding or part thereof need not be hopeless or bound to fail to be properly characterised as lacking reasonable prospects of success) also appears in s 31A of the Federal Court of Australia Act 1976 (Cth). It has been the subject of some discussion in that Court, as set out below, as the qualification is a relatively recent development which has been regarded as lowering the threshold for summary dismissal.

Migration Act provisions

1. Part 7 of the Act at the time of the Tribunal's decision governed the Tribunal's review of decisions concerning protection visas. Section 422B of the Act, which dealt with the question of natural justice, appeared in that part, and provided as follows:

422B Exhaustive statement of natural justice hearing rule

(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3) In applying this Division, the Tribunal must act in a way that is fair and just.

1. Sections 425 and 425A of the Act, as at the date of the Tribunal hearing, were as follows:

425 Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2) The notice must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4) The notice must contain a statement of the effect of section 426A.

426A Failure of applicant to appear before Tribunal

(a) is invited under section 425 to appear before the Tribunal; but

(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

(1A) The Tribunal may:

(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.

Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.

Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:

(a) if it considers it appropriate to do so - reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or

(b) confirm the decision to dismiss the application, by written statement under section 430.

Note 1: Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.

Note 2: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1D) If the Tribunal reinstates the application:

(a) the application is taken never to have been dismissed; and

(b) the Tribunal must conduct (or continue to conduct) the review accordingly.

(1E) If the applicant fails to apply for reinstatement within the 14‑day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.

Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear

(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.

1. In relation to methods of transmission and communication by the Tribunal, and the time at which such communications are taken as having been received, ss 441A and 441C of the Act provided, inter alia:

441A Methods by which Tribunal gives documents to a person other than the Secretary

(1) For the purposes of provisions of this Part or the regulations that:

(a) require or permit the Tribunal to give a document to a person (the recipient); and

(b) state that the Tribunal must do so by one of the methods specified in this section;

Transmission by fax, email or other electronic means

(5) Another method consists of a member or an officer of the Tribunal transmitting the document by:

(a) fax; or

(b) email; or

(c) other electronic means;

to:

(d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or

(e) if the recipient is a minor - the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.

441C When a person other than the Secretary is taken to have received a document from the Tribunal

(1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).

Transmission by fax, email or other electronic means

(5) If the Tribunal gives a document to a person by the method in subsection 441A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

1. On an application made pursuant to s 476 of the Act, the Court may only make orders in respect of a decision of the Tribunal where it is satisfied that the Tribunal's review is affected by jurisdictional error.
2. Jurisdictional error describes a failure, by a person or body given authority under a statute to exercise a power, to comply with a condition attaching to the exercise of that power, where that failure is of such a character as to warrant the conclusion that the purported decision or purported exercise of power lacks the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; fails to observe some applicable requirement of procedural fairness; and in some cases, makes an erroneous finding or reaches a mistaken conclusion: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 at [2]- [3] (LPDT).
3. In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: LPDT at [7]. There are some categories of error where the nature of the error itself bespeaks materiality.
4. The grounds of review set out in the applicant's originating application are (reproduced without alteration):
   1. The Department of Home Affiairs (sic) was unfairly treated my claims and evidence with wendesbury unreasonableness
   2. The Department of Home Affairs and Administrative Appeals Tribunal was improperly aoplied (sic) the legal provisions of: Section 426, Section 441A(5) of Migration Act 1958 properly to assess my case
5. In her affidavit made 12 December 2021 (lodged with the Court on 28 December 2021), the applicant restated these two grounds in the body of the affidavit. No other statement was contained within the body of the affidavit.
6. In identifying the grounds which have been articulated by the applicant some allowance must be made given she is not legally represented and requires the assistance of an interpreter. Making such allowance, the applicant's grounds raise for determination, whether:

(a) The Tribunal's decision to dismiss her application upon her failure to appear at the hearing was an unreasonable exercise of discretion, in the sense discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) and Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1 (Singh);

(b) The Tribunal failed to notify the applicant of her hearing in the manner required by the Act.

1. On the present application, the Court must address a different question, namely, whether the applicant has no reasonable prospect of successfully prosecuting her claim that the Tribunal's decision was affected by jurisdictional error.
2. In Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473, Perry J at [7] summarised the principles applicable to an application pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the analogue of s 143 of the FCFCOA Act):

The principles governing the application of s 31A are well established and can be summarised as follows:

(1) The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).

(2) With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:

...will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.

(3) Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be "manifestly groundless" or "hopeless": Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).

(4) An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).

(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:

...the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

(6) To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant's success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour's view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.

1. Those questions are addressed below following a discussion of the relevant facts and background.

1. The applicant is a citizen of the People's Republic of China. The applicant made an application for a Protection (subclass 866) visa to the Department on 28 February 2020. In the visa application, the applicant specified an email address for communication with the Department, being an email address ending '@yahoo.com' (the Yahoo address).
2. On 9 July 2020, the applicant lodged an application for a bridging visa while awaiting determination by the Department of the protection visa application. On the bridging visa application, the applicant answered in the affirmative to a question asking whether she agreed to the Department communicating with her by email. She then provided an email address ending '@gmail.com' (the Gmail address). In response to a further question on the bridging visa application, the applicant indicated that all communications about the application should be sent to her.
3. On both the visa application and bridging visa application, the applicant provided the same mobile number in connection with both applications (the mobile number).
4. The applicant's claims for protection were based on her Christian faith and affiliation with an underground "non-official" church in her home country. The applicant, in the visa application, stated that the government used police to monitor and follow members of the church congregation, arrested some priests, and tore down the church. The applicant claimed to have been fearful about being subject to mistreatment.
5. On 24 February 2021, the visa application was refused by the delegate. The delegate referred to country information indicating that Chinese regulations implemented in February 2018 impose strict restrictions on house churches and heavy punishment for violators. While the delegate noted that there are a number of state-sanctioned churches in China, many people still worship in unofficial or house churches. The delegate stated that non-registered congregations have been subject to various forms of harassment, but have not faced arrest, and that those members or church leaders who have been arrested were largely subject to short-term detentions which did not lead to criminal charges.
6. The delegate accepted the applicant's claims that she is Christian, but concluded that, as she had not claimed to be a church leader or to have proselytised, she was of a low profile and therefore, was not of interest to the authorities.
7. The delegate placed emphasis on the fact that the applicant had no difficulty in leaving China, having exited China legally on a passport in her own name. This was despite the applicant's claims that she was being monitored by police. This led the delegate not to accept the applicant's claims that she was of adverse interest to the Chinese authorities as a result of her faith at the time of her departure.
8. The delegate was not satisfied that the applicant had a real chance of facing persecution if returned to the People's Republic of China. The delegate also undertook an assessment against the "complementary protection" criteria in s 36(2)(aa) of the Act, and was not satisfied that there were substantial grounds for believing that the applicant would suffer serious harm if removed to the People's Republic of China.
9. A copy of the decision record was sent to the applicant by email to the Gmail address on 24 February 2021.

1. On 5 March 2021, the applicant made an application to the Tribunal for review of the primary decision of the delegate. In the Tribunal application, the applicant specified a different email address for communication, ending '@yeah.net' (the Yeah address). In response to a question on the application form, the applicant indicated that the Tribunal should send correspondence to the applicant. The applicant listed the mobile number on the application.
2. On 8 March 2021, the Tribunal sent an acknowledgement of application letter by email to the applicant to the Yeah address. This letter, inter alia, set out the following:

It is important that you:

• tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;

1. On 25 October 2021, the Tribunal wrote to the applicant by email to the Yeah address and advised that due to the COVID-19 pandemic, it was not holding face to face (or in person) hearings in Melbourne or Sydney, and that as a result it was proposing to schedule a hearing for her to attend by Microsoft Teams. The Tribunal invited the applicant to advise it within seven days if the applicant did not have the appropriate technology or if there were other barriers that would prevent her from participating in a hearing via Microsoft Teams. It advised that if she did not respond to the email, the Tribunal would assume that the applicant did not have any issues with participating in the hearing scheduled in that manner.
2. There is nothing in the court book to indicate that the applicant responded to that email by any means.
3. On 19 November 2021, the Tribunal wrote to the applicant by email to the Yeah address attaching an invitation to attend a hearing (the invitation), a fact sheet containing information about hearings in the Tribunal, and a response to hearing invitation form. The invitation set out on its front page, inter alia, the date, place, and time of the hearing, which was to take place at 4:00pm on 6 December 2021 via Microsoft Teams. The invitation also set out the following (emphasis in original):

What will happen if you don't appear

If you do not appear at the scheduled hearing, including not appearing by video conference using Microsoft Teams at the scheduled time, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

1. The enclosed fact sheet also contained similar information in near identical wording.
2. The Tribunal wrote by email to the applicant on 29 November 2021. In its email, the Tribunal advised that it had updated the MS Teams link to the hearing, and attached a letter dated 29 November 2021 which was identical to the invitation, save, as indicated in the covering email, that the link for the meeting was different to that which had been embedded in the invitation.
3. The court book did not contain a completed response to hearing invitation form. At the hearing before the Court, the applicant did not make any assertion that she had in fact provided a completed response form to the Tribunal.
4. In addition to the invitations sent by email, the Tribunal's case summary (annexed to Ms Butterfield's affidavit) records that the Tribunal sent text messages to the mobile number on 29 November 2021 and 3 December 2021, reminding the applicant of the Tribunal hearing scheduled on 6 December 2021. The text messages contained a 1800 telephone number to call with any questions.
5. On 6 December 2021, the Tribunal conducted the hearing. The applicant did not access the link to attend the hearing before the Tribunal, nor present the Tribunal with any written evidence. A watermark on the Tribunal's Refugee Hearing Record states: "NO SHOW - AM - 6/12/2021 - 4:30PM". The Hearing Record also contained the following typed comments:

4pm: PRA [primary review applicant] did not join the meeting

4:30pm: PRA did not join meeting - Member calls no show

1. The Tribunal's case summary contains a notation from a Tribunal staff member that she was "present in the hearing" (presumably connected to the Microsoft Teams Link) from 4pm until 4.30pm, and that the applicant failed to join the link or make contact. The document records that "no show confirmed by member" at that time. The applicant made no claim in her application or affidavits that she in fact logged onto the Microsoft Teams link for the purpose of the Tribunal hearing, or that she made any attempt to do so or that she made any attempt to contact the Tribunal to explain her inability to attend.

1. On 7 December 2021, the Tribunal made a decision to dismiss the application pursuant to s 426A(1A)(b) of the Act on the basis of the non-appearance of the applicant (non-appearance decision).
2. On that same date, the Tribunal sent an email to the applicant to the Yeah address attaching a letter notifying the applicant that the Tribunal had made a decision to dismiss the application for review due to her non-attendance, along with a fact sheet with information about dismissal of applications, and a copy of the Tribunal's non-appearance decision. The cover letter contained the following information on the front page (emphasis in original):

You may apply to us, in writing, for reinstatement of the application by 21 December 2021. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.

1. The fact sheet similarly contained the following information on its first page (emphasis in original):

What happens if an application is dismissed?

Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.

On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.

If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.

A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.

1. The applicant did not seek reinstatement of the matter in the Tribunal within the fourteen-day period.
2. On 22 December 2021, the Tribunal made a further decision confirming its non-appearance decision to dismiss the applicant's application for review of the primary decision (the confirmation decision).
3. On that same date, the Tribunal sent an email to the applicant to the Yeah address, attaching a further covering letter, along with a fact sheet with information about dismissal of applications, and a copy of the confirmation decision.

1. Following the confirmation decision, on 28 December 2021, the applicant made an application to this Court for judicial review of the Tribunal's decision (the originating application).
2. The grounds of the originating application have been set out above.
3. The parties appeared before a Registrar of this Court on 28 May 2025 for hearing of the first respondent's interlocutory application. The Registrar made orders summarily dismissing the originating application with costs.
4. On 5 June 2025, the applicant lodged her application seeking review of the Registrar's decision.

1. As set out above, in the context of the present summary dismissal application, the applicant's application requires a determination regarding whether there is no reasonable prospect of the applicant persuading the Court that the Tribunal's review was affected by jurisdictional error.
2. Those alleged errors are addressed in turn below.

Failing to notify the applicant of the hearing in the manner required by the Act

1. The Tribunal was required by s 425A of the Act to give the applicant notice of the day, time and place of its hearing, and to give that notice by one of the methods specified in s 441A of the Act.
2. Section 441A permitted such notice to be given by the following methods:

441A Transmission by fax, email or other electronic means

(5) Another method consists of a member or an officer of the Tribunal transmitting the document by:

(a) fax; or

(b) email; or

(c) other electronic means;

to:

(d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or

(e) if the recipient is a minor - the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.

(a) was dated 19 November 2021, giving the applicant in excess of the 14 days' notice prescribed pursuant to s 425A(3) in reg 4.35D of the Migration Regulations 1994 (Cth); and

(b) was addressed to the Yeah address, which was the last email address provided by the applicant to the Tribunal in connection with the review; and

(c) contained the date, time and address of the Tribunal hearing to which the applicant was invited.

1. The letter also contained the following (emphasis in original):

What will happen if you don't appear

If you do not appear at the scheduled hearing, including not appearing by video conference using Microsoft Teams at the scheduled time, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.

1. That section of the letter addressed the effect of s 426A of the Act. The applicant has not contended that the letter did not make a statement that was sufficient to comply with the requirement in s 425A(4) of the Act that the effect of s 426A be stated.
2. The applicant has not identified any way in which the letter dated 19 November 2025 did not comply with the requirements of s 425A of the Act. She has not articulated any argument as to how the Tribunal failed to comply with the notification requirements in s 441A(5) of the Act in the manner in which it sent the letter.
3. This ground does not have a reasonable prospect of success.

Unreasonable exercise of discretion to dismiss the application

1. The focus of this ground must necessarily be upon the decision made by the Tribunal in consequence of the applicant's non-appearance at the hearing on 6 December 2021. At that point, the Tribunal had a discretion about the manner in which it proceeded, which discretion was capable of being characterised as having the quality of unreasonableness, and therefore involving jurisdictional error.
2. The character of the decision at that stage contrasts with the confirmation decision. Having made its decision to dismiss the application pursuant to s 426(1A)(b) of the Act, and the applicant having failed to make an application to reinstate her application within fourteen days, the Tribunal was compelled, by s 426A(1E) of the Act to decide as it did on 21 December 2021 and confirm the dismissal. It had no discretion to do otherwise. No attack may be mounted against the confirmation decision on reasonableness grounds.
3. When the applicant failed to appear at the hearing on 6 December 2021, there were three steps available to the Tribunal, namely:

(a) pursuant to s 426A(1A)(a) of the Act, the Tribunal could proceed to make a decision on the review without doing anything further to hear from the applicant. That course would have the consequence that the applicant might seek to challenge that decision in this Court for jurisdictional error, but would otherwise lose the capacity to be heard on the merits of the review application;

(b) pursuant to s 426A(1A)(b) of the Act, the Tribunal could proceed to dismiss the application without further consideration. The making of such a decision carried with it the consequence that the applicant could apply, pursuant to s 426(1B) of the Act to reinstate the application. This course preserved the possibility that the Tribunal could hear from the applicant on its merits review of the delegate's decision;

(c) pursuant to s 426A(2) of the Act, the Tribunal could reschedule the applicant's appearance or delay its decision on the review in order to enable the applicant's appearance before it.

1. The Tribunal proceeded pursuant to s 426A(1A)(b) of the Act. As set out above, there was an advantage for the applicant of proceeding pursuant to s 426(1A)(b) of the Act, rather than s 426A(1A)(a), in that the former course preserved the possibility of the applicant having an opportunity to appear on a merits review of her application. There could be no suggestion in the present matter that it was unreasonable, in the sense discussed in the authorities, for the Tribunal to proceed pursuant to s 426A(1A)(b) of the Act. The only question that arises is whether the applicant has reasonable prospects of arguing that it was unreasonable of the Tribunal not to take the course of rescheduling the hearing to a later date, pursuant to s 426A(2) of the Act.
2. In Kaur v Minister for Immigration and Border Protection (2014) 141 ALD 619; [2014] FCA 915 (Kaur), Mortimer J (as her Honour then was) considered whether a decision by the Tribunal dealing with an application for review of a refusal of a student visa, to determine the application when the applicant failed to appear at the hearing in reliance upon s 362B (a provision which is analogous to s 426A) was legally unreasonable, in the sense discussed in Li and Singh.
3. Her Honour concluded that the decision of the Tribunal in that matter to proceed to determine the review was unreasonable. Her Honour's judgment contains a detailed recitation of the applicant's engagement with the Tribunal over the course of the review about the evidence the Tribunal requested.
4. Her Honour noted (at [11]), that at [42] of Singh, the Full Court said:

Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence.

1. Considering the interaction between the obligation of reasonableness, and the provisions in the Act which govern notification, her Honour said (at [133] and [134]):

There is, however, no difficulty in accepting the proposition which also emerges from SZFHC that, having complied with its obligations under s 425A (or, here, s360A) there cannot be discerned from ss 425 and 425A read together (or, here, ss360 and 360A read together) any freestanding obligation on the Tribunal, in every case where there has been a failure to respond to a hearing invitation and a failure to appear at a scheduled hearing, to search its records, or those of the Department, to discover if there might be another way of communicating with the applicant. To imply such an obligation would be to constrain the discretions in s 362B and s 426A in a way the legislative scheme does not suggest is justified.

The reconciliation of that proposition with the proposition that the discretions in s 362B (and 426A) must be exercised reasonably is, as both Li and Singh recognise, not found in some checklist approach, but in a consideration of the factual circumstances in which the particular discretion was exercised in respect of a particular review and particular review applicant.

1. However, her Honour went on (at [135]) to opine that the sending of a hearing invitation in accordance with the notification provisions, which invitation is deemed received under the Act does not foreclose a conclusion that an exercise of discretion under s 362B was legally unreasonable.
2. In Singh, her Honour noted the absence of urgency on the Tribunal's part in the conduct of its review. Her Honour also noted that the applicant had been engaged with the review, such that her non-appearance at the hearing should have been seen by the Tribunal member and officers as out of character.
3. A Tribunal acting fairly, her Honour said, would have taken some steps to find out what had happened. Her Honour considered that a follow up communication would likely have resulted in the applicant attending a second hearing.
4. In the present matter there was no significant delay in the conduct of the Tribunal's review. The application for review was lodged with the Tribunal on 5 March 2021, and was given a hearing date on 6 December 2021, just nine months later. Nothing about the time that elapsed between lodging the application and the hearing could on any view be said to have made it unreasonable for the Tribunal to proceed in the manner it did.
5. Nor in this matter might it be said that the applicant's level of engagement was such that the applicant's non-attendance at the hearing should have been regarded as out of character. The applicant had not engaged at all with the Tribunal following the lodgement of the application for review.
6. Leading up to the hearing the Tribunal sent three emails to the applicant over the course of about a month: on 25 October 2021, on 19 November 2021 and 29 November 2021. The Tribunal also sent two reminder text messages in the week prior to the hearing. Unlike the position in Kaur, there is nothing to indicate that a follow up communication might have resulted in the applicant engaging with the Tribunal.
7. The Court needs only to be satisfied that the applicant has reasonable (and not good) prospects, and the question of reasonableness is in each case a fact specific inquiry. However, as discussed by Mortimer J in Kaur, the starting point in any analysis of this ground is that there is no general obligation upon the Tribunal to do anything other than notify an applicant of their hearing in accordance with the requirements of the Act. That was done here, as the discussion above demonstrates. In those circumstances, the applicant has a difficult task indeed to demonstrate that the decision to dismiss her application for her non-appearance was an unreasonable one. She has not identified any factual features of the present matter that could conceivably support such a conclusion. Indeed, the only features that distinguish the present matter are the fact that the applicant has not denied receipt of the Tribunal's hearing notice, and the Tribunal took steps over and above those it was required to take under the Act to bring the fact of the hearing to the forefront of the applicant's mind. Given the applicant remained disengaged despite the Tribunal communicating about the matter by two different means, there was nothing that would have been signified to a Tribunal acting reasonably that the applicant genuinely wished to pursue her application, or that there would be utility in further attempts to communicate with the applicant using any of the means she had notified.
8. This ground does not have reasonable prospects of success.
9. The applicant has not currently articulated any arguable jurisdictional error that the Tribunal erred in failing to notify the applicant of the hearing in accordance with the requirements of the Act. No question of fact or law has been identified for determination. There is no reasonable prospect of success on this ground.
10. I have considered whether any alternative ground was available to the applicant because she was not afforded the opportunity to attend a hearing in the Tribunal in person. In Korovata v Minister for Immigration [2001] FCA 1446, Emmett J considered (at [24]) that s 366 (a provision in pt 5 of the Act which corresponds with s 429A of the Act) did not authorise the Tribunal to limit an applicant's right to appear by telephone and nothing more. However, in Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157 the Full Court rejected that proposition. Accordingly, I do not consider that there is any ground with reasonable prospects arising from the fact that the Tribunal's hearing was notified to take place by video link, and in fact proceeded in that manner, consistent with arrangements the Tribunal had adopted in the midst of the COVID pandemic.
11. It is a serious step to determine that an applicant should not be entitled to proceed to a final hearing. The applicant's case in the present matter is so lacking in prospects that it is appropriate to so decide. The application should be dismissed pursuant to r 13.13 of the 2021 GFL Rules or alternatively, pursuant to r 23.08 of the 20215 GFL Rules. As the applicant's application does not have reasonable prospects of success, the application for review of the registrar's decision must be dismissed.
12. The applicant should pay the first respondent's costs.

I certify that the preceding eighty -nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.