FFW25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 150

1. On 4 December 2025, a Judicial Registrar of this Court (Judicial Registrar), in the exercise of the delegated power ordered summary judgment for the first respondent pursuant to r 23.08(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (GFL Rules), on the basis that the claim for relief had no reasonable prospect of success (Registrar's Decision). By an application accepted for filing on 18 December 2025, the applicant seeks a review of the Registrar's Decision.
2. Pursuant to r 3.06(1) of the GFL Rules, the application for review of the exercise of a power by a Judicial Registrar must be made within 21 days after the day on which the power was exercised. I note the application for review of the Registrar's Decision was brought within time.

APPLICATION FOR REVIEW OF EXERCISE OF POWER BY JUDICIAL REGISTRAR

1. Pursuant to r 3.08(1) of the GFL Rules, this Court's review of an exercise of power by a Judicial Registrar is by way of a hearing de novo. That is, for such hearings to be conducted afresh and not concerned with correcting error in the decision-making process of the Judicial Registrar. The validity of the exercise of delegated judicial power by a Registrar of this Court is dependent upon this principle and the right for parties to seek review of the exercise of delegated judicial authority: Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34 (Allsop CJ, Markovic and Colvin JJ) at [2]; BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307 (Burley J) at [11]; Allison v Murphy [2021] FCAFC 232 at [11].
2. Accordingly, I consider afresh the Minister's application for summary judgment of the application for judicial review under r 23.08(1)(a) of the GFL Rules and s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act). For the reasons set out below, I find the applicant does not have reasonable prospect of successfully prosecuting the proceedings. In those circumstances, summary judgment should be given for the first respondent and I dismiss the applicant's application for review of the Registrar's Decision.

1. The background to this matter was set out at [5] to [12] of the Minister's submissions dated 14 November 2025, which I adopt and revise as appropriate.
2. The applicant is a citizen of China who applied for a Protection (Class XA) (Subclass 866) visa (protection visa) on 2 April 2019 (Court Book (CB) 1 to 21).
3. On 8 March 2021, a delegate of the Minister refused to grant the applicant a protection visa (delegate's decision) (CB 64 to 69).

1. On 12 March 2021, the applicant lodged an application for review of the delegate's decision to the Administrative Appeals Tribunal (Tribunal) (CB 70 to 74). The applicant provided her email address as "longhe206@gmail.com" (nominated email address), and did not provide her telephone number. The same email address was provided by the applicant to the Department of Home Affairs (Department) (CB 40). The applicant did not appoint a representative or an authorised recipient.
2. On 14 October 2024, the Administrative Appeals Tribunal transitioned the Administrative Review Tribunal. Pursuant to the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Transitional Act), applications for review to the Administrative Appeals Tribunal that were not finalised before 14 October 2024 were taken to be an application for review to the Tribunal, and the Transitional Act gave the Tribunal the authority to continue and finalise any aspect of the review not already completed by the Administrative Appeals Tribunal.
3. On 28 February 2025, the Tribunal emailed the applicant at the nominated email address, inviting her to attend a hearing in person on 19 March 2025 at 2:00pm (hearing invitation) (CB 85 to 87). The MR 18 Factsheet attached to the hearing invitation, inter alia, relevantly stated (CB 91 and 92):

If you do not appear at the scheduled hearing, 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...

...

Within 28 days after receiving notice of the dismissal decision you may apply for reinstatement of the application.

...

If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 28-day period, we must confirm the decision to dismiss the application.

1. On 19 March 2025, the applicant failed to attend the scheduled hearing (CB 94 to 96).
2. On 26 March 2025, the Tribunal dismissed the application pursuant to s 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) for the applicant's failure to appear at the Tribunal hearing (Dismissal Decision) (CB 101 and 102), and notified the applicant by email to the nominated email address of the Dismissal Decision and the applicant's entitlement to apply for reinstatement by 23 April 2025 (CB 99).
3. On 24 April 2025, noting the applicant had not applied for reinstatement within the 28-day period, the Tribunal confirmed by written statement the Dismissal Decision pursuant to s 368C(5) of the Migration Act 1958 (Cth) (Migration Act) (Confirmation Decision) (CB 108 and 109). On 30 April 2025, the Tribunal notified the applicant of the Confirmation Decision by email from the Tribunal to the nominated email address pursuant to s 368A of the Migration Act (CB 104).

APPLICATION FOR JUDICIAL REVIEW AND PROCEDURAL HISTORY

1. On 8 May 2025, the applicant filed an application in this Court seeking judicial review of the Tribunal's Confirmation Decision dated 24 April 2025. The following grounds for judicial review were raised in the application (as per original):
   1. The Tribunal didn't follow the procedural fairness and made a jurisditional [sic] error.
   2. The Tribunal didn't provide me with another chance as I was sick and missed the interview.
   3. The Tribunal didn't give me the reasons regarding the risks of going back to my country.
2. The affidavit of the applicant filed on 8 May 2025 which enclosed the Tribunal's Dismissal Decision and the Confirmation Decision stated the following (as per original):
   1. I need to apply for the court to review the decision made by the Tribunal.
   2. I attached the decision record made by Tribunal.
3. On 14 October 2025, the Minister in his response sought orders that the application for judicial review be listed for summary judgment pursuant to r 23.08 of the GFL Rules.
4. On 4 December 2025, pursuant to r 23.08(1)(a) of the GFL Rules, Judicial Registrar Lindsay summarily dismissed the applicant's application for judicial review on the basis that the applicant's claim for relief had no reasonable prospect of success, and ordered that the applicant pay the Minister's costs fixed in the amount of $4,553.02.
5. On 15 December 2025, the applicant filed in this Court an application for review of the Registrar's Decision and the corresponding orders dated 4 December 2025. The applicant sought the following orders in her application for review (as per original):
   1. The application for judicial review allowed.
   2. The respondents pay the costs.
6. On 19 December 2025, the proceedings were docketed to my list and set down for hearing before me.

1. The applicant appeared at the hearing before me as litigant in person, assisted by an interpreter in the Mandarin and English languages. The Minister was represented by Mr T Pattinson, a solicitor from Mills Oakley. Mindful of the Court's duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [37]), I explained to the applicant the role of the Court in undertaking a review of the Registrar's Decision and considering the application for judicial review, being a review afresh. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application for judicial review, application for review of the Registrar's Decision and the Minister's written submissions dated 14 November 2025 and 27 January 2026. The applicant did not provide any written submissions. I ensured the applicant had interpreted to her the relevant documents except the Court Book.

Documents sought to be relied upon by the applicant

1. I accepted the applicant's application filed on 16 May 2025, on the basis that it set out the applicant's grounds for judicial review.

1. The Minister relied on his written submissions dated 14 November 2025 and 27 January 2026 and tendered the Court Book, which was marked "Exhibit R1".
2. In this case I need to determine whether summary judgment ought to be granted. To that end, I first set out the relevant legal principles applicable to whether or not to grant summary judgment.

RELEVANT LEGAL PRINCIPLES AS TO SUMMARY JUDGMENT

1. Section 143 of the FCFCOA Act relevantly provides:

(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.

(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

(b) the proceeding is frivolous or vexatious; or

(c) no reasonable cause of action is disclosed; or

(d) the proceeding is an abuse of the process of the Court; or

(e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

1. When considering a summary judgment application, the Court is not required to determine whether the Tribunal's decision contained jurisdictional error, but rather whether the application for judicial review filed by the applicant has no reasonable prospect of success. Section 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) are similar to the provisions applied in this Court as set out in [24] and [25] of this judgment.
2. In Spencer v Commonwealth of Australia (2010) CLR 118; [2010] HCA 28, the High Court regarding the phrase "no reasonable prospect of successfully prosecuting the proceeding" said that no paraphrase of that phrase should be adopted to explain its operation. Hayne, Crennan, Kiefel and Bell JJ stated at [60]:

Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. ...

1. As said in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392 (Mortimer J (as her Honour then was)) at [19]: "like other judicial guidance in relation to statutory discretions expressed in an unconfined way, or expressed by reference to broad considerations, it is critical that such guidance not be taken as exhaustive. Nor must it be applied as if it is a code".

1. I now turn to consider each of the three grounds for judicial review raised by the applicant.

1. In ground 1, the applicant contends that the Tribunal did not follow procedural fairness and made a jurisdictional error. At the hearing before me I asked the applicant to explain why she said that the Tribunal did not follow procedural fairness but the applicant said she had nothing to say.
2. The Minister understood the ground to allege that the Tribunal failed to comply with its procedural fairness obligations pursuant to s 357A under Division 4 of Part 5 of the Migration Act. Given the applicant's non-appearance at the scheduled hearing, the Minister submits that the Tribunal was entitled to make a decision without taking further steps to enable the applicant to appear before it pursuant to s 99 of the ART Act.
3. I accept that the issue in this case is whether the applicant was validly notified of the hearing date and whether the decision of the Tribunal to exercise its statutory discretion to make a decision pursuant to s 99 of the ART Act was legally reasonable.
4. I find that there was no procedural unfairness because, for the reasons that follow, the Tribunal properly discharged its duty and powers:

(a) As set out at [10] of this judgment, the Tribunal invited the applicant to attend a Tribunal hearing in person, which invitation was sent to the applicant's nominated email address as identified in her application for review of the delegate's decision. The applicant accepted before me that had received a copy of the hearing invitation. The invitation stated that the hearing was to be in person. The MR 18 Factsheet attached to the initial hearing invitation made it clear that if the applicant did not appear then the case might be dismissed because of non-appearance, but it could be reinstated if the Tribunal member considered it appropriate to do so and the application was made within 28 days after receiving notice of the dismissal (CB 92).

(b) As set out at [11] of this judgment, on 19 March 2025 the applicant failed to attend the scheduled Tribunal hearing.

(c) The Tribunal had power under s 99 of the ART Act to dismiss the application if two preconditions were satisfied, being the applicant's failure to appear at the Tribunal hearing and the Tribunal being satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal hearing. The Tribunal's Dismissal Decision at [2] to [3] of its reasons correctly identified that it was satisfied as to the two preconditions, and noted that the applicant had corresponded with the Tribunal on multiple occasions from her nominated email address, and accordingly exercised power to dismiss the application pursuant to s 99 of the ART Act.

(d) On 26 March 2025, the Tribunal sent to the applicant at her nominated email address notification of the decision to dismiss her application and expressly stated that she could seek reinstatement of the application for review before the Tribunal but had to do so by 23 April 2025. The applicant was clearly on notice as to her rights for reinstatement and it was a matter for her if she chose not to pursue those rights. Further, before me the applicant accepted that had received a copy of the letter dated 26 March 2025 from the Tribunal.

(e) As no reinstatement application was made in the Tribunal, pursuant to s 368C(5) of the Migration Act, the Tribunal "must confirm the decision to dismiss the application, by written statement under section 368" of the Migration Act. Further s 368C(6) provides that if the Tribunal "confirms the decision to dismiss the application, "the decision under review is taken to be affirmed". Therefore, in the circumstances of this case, the Tribunal was correct in its decision dated 24 April 2025 to confirm the decision to dismiss the applicant's application for review of the delegate's decision.

1. Accordingly, I find that there are no reasonable prospects of success in relation to ground 1.

1. By ground 2, the applicant alleges that the Tribunal did not provide the applicant with another chance as she was sick and missed the "interview". At the hearing before the applicant said she had nothing to say about ground 2, but accepted that she did not contact the Tribunal to inform the Tribunal that she was sick.
2. The applicant did not ask the Tribunal for an adjournment of the hearing on the basis that she was sick, therefore I find that the Tribunal did not breach any obligations. Further, in circumstances where the applicant did not seek reinstatement within the 28-day period, the Tribunal's discretion to reinstate the application pursuant to s 102 of the ART Act was not enlivened, and the only option available to the Tribunal was to confirm the Dismissal Decision pursuant to s 368C(5) of the Migration Act.
3. Accordingly, I find there are no reasonable prospects of success in relation to ground 2.

1. By ground 3, the applicant alleges that the Tribunal did not give the applicant the reasons regarding the risks of going back to her country. At the hearing before me, the applicant again said she had nothing to say in support of ground 3.
2. For the reasons outlined at [33(a)] to [33(e)] of this judgment, I find the Tribunal validly invited the applicant to attend the scheduled Tribunal hearing. In light of this and the applicant's failure to attend the Tribunal hearing, the Tribunal was empowered to proceed as it did to dismiss the application under s 99 of the ART Act without any further consideration of the application or the applicant's protection claims and without the need to make an assessment on whether the applicant met ss 36(2)(a) or 36(2)(aa) of the Migration Act. Given the Tribunal did not consider nor assess the applicant's claims, it follows that the Tribunal was also not required to provide the applicant with reasons as to findings on her protection visa claims as such findings were not made.
3. Accordingly, I find there are no reasonable prospects of success in relation to ground 3.

1. On the basis set out above, I am satisfied that the applicant has no reasonable prospects of establishing jurisdictional error in the Tribunal's decision dated 24 April 2025. Therefore, I would make the same orders made by Judicial Registrar Lindsay, which were as follows:
   1. The summary judgment of this Court is that the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding pursuant to r 23.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
   2. The applicant pays the first respondent's costs in the amount of $4553.02.
2. Therefore, rather than vacate the above orders and remake the orders, I allow those orders to stand.

1. At the hearing before me, I heard the parties' submissions as to costs. The Minister sought $850 in costs, in addition to the $4,553.02 ordered by the Judicial Registrar. Given the procedural history of this matter, I allow Order 2 of Judicial Registrar Lindsay's orders to remain and order an additional amount of $850 in costs.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.