FGS25 v Minister for Immigration and Citizenship

1. The applicant seeks review of an exercise of power by a Registrar through orders made on 27 November 2025. By those orders, the Registrar summarily dismissed an application for judicial review (Substantive Application) pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and r 23.08(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (GFL Rules), with costs.
2. The Substantive Application sought judicial review of a decision made by the Administrative Review Tribunal (Tribunal) on 6 May 2025. By that decision, the Tribunal confirmed a decision to dismiss an application that had been made to it for review of a decision of a delegate (Delegate) of the first respondent (Minister). The Delegate had refused to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).

1. The applicant applied for the protection visa on 10 November 2018. On 7 July 2021, the Delegate refused to grant the applicant's protection visa application.
2. On 26 July 2021, the applicant applied to the Administrative Appeals Tribunal (as it was) for review of the Delegate's decision. Following passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the functions of the Administrative Appeals Tribunal were assumed by the Tribunal.
3. Following some correspondence regarding Medicare, on 13 February 2025 the Tribunal wrote to the applicant requesting completion of a pre-hearing information form. It does not appear that the form was completed as requested.
4. On 20 March 2025, an email was sent inviting the applicant to attend a hearing before the Tribunal on 7 April 2025. On 31 March 2025, a Bridging Visa Grant Notice appears to have been received by the Tribunal, together with a Change of Contact Details form advising new contact details.
5. There was no appearance for the applicant at the hearing before the Tribunal scheduled on 7 April 2025. On that date, the Tribunal dismissed the application before it under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). The applicant was notified of this decision (dismissal decision) through an email sent on 7 April 2025, which also provided information regarding her ability to apply for reinstatement by a specified time.
6. The applicant did not apply for reinstatement within the time period specified. On 6 May 2025, the Tribunal confirmed its decision to dismiss the application before it (confirmation decision). An email notifying this was sent that same day.

1. The Tribunal gave the following reasons for the dismissal decision:
   1. The review applicant was notified to appear before the Tribunal at 10:30 am on 7 April 2025. The hearing notice stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
   2. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing
   3. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5) of the Migration Act 1958 (Cth), and the notice has not been returned to sender. The Tribunal is also satisfied that two separate SMS reminders were also sent to the review applicant about the hearing.
   4. The Tribunal is satisfied that the review applicant received appropriate notice of the date, time and place of the hearing. The applicant was given notice of the date and time of the hearing, to her contact email, on 20 March 2025, well before the date of the hearing. She was also given clear instructions regarding where the hearing would be held and how to contact the Tribunal if she is not able to appear as scheduled.
   5. The applicant did not respond to the hearing invitation and did not contact the Tribunal before the hearing seeking that the hearing be rescheduled.
   6. The applicant was also sent a pre-hearing outreach email on 13 February 2025 advising her that her file was being prepared to be given to a Tribunal Member and giving her the opportunity to complete a pre-hearing information form to assist the Tribunal Member to conduct the review. She was provided with a link to access the form and requested to complete the form and return it within 7 days. No response was received from the applicant.
   7. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
2. The Tribunal gave the following reasons for the confirmation decision:
   1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 July 2021 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).
   2. On 7 April 2025 the Tribunal dismissed the application under s 99 of the Administrative Review Tribunal Act 2024 (Cth) as the review applicant did not appear before it at the time and date of the scheduled hearing.
   3. The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision, in accordance with s 368B(5). The review applicant was advised that reinstatement of the application could be sought within 28 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 28 days period would result in confirmation of the dismissal decision.
   4. As the review applicant did not apply for reinstatement of the application within the 28 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
   5. The Tribunal confirms the decision to dismiss the application.

1. The applicant applied for judicial review through an application filed on 14 May 2025. The grounds relied upon by the applicant in the Substantive Application were stated as follows:
   1. The Department of Home Affairs was unfairly treated my claims and evidence with wendesbury unreasonableness
   2. The Department of Home Affairs and Administrative Appeals were improperly applied the legal provisions of : s368B(5) of the Migration Act 1958 and s99 of the Administrative Review Tribunal Act 2024 properly to assess my case

1. The Minister sought summary dismissal on the basis that the applicant had no reasonable prospect of successfully prosecuting the Substantive Application. As noted above, orders were made by a Registrar summarily dismissing the Substantive Application on 27 November 2025.
2. On 4 December 2025, the applicant applied for review in relation to the associated orders that were made by the Registrar (Review Application). In that application, it was stated:
   1. The Federal Circuit and Family Court of Australia erred in law by failing to properly apply the legal provisions of section 379A(5) of the Migration Act 1958 in the assessment of my case against the Minister for Immigration, Citizenship, and Multicultural Affairs and the Administrative Appeals Tribunal (AAT). This failure resulted in a finding that the Court lacked jurisdiction. I seek an order compelling both the Minister and the AAT to set aside the finding of no jurisdiction and to re-exercise jurisdiction over my matter according to the correct legal standard.
   2. I request that the Minister for Immigration, Citizenship, and Multicultural Affairs and the Administrative Appeals Tribunal (AAT) review and reconsider their prior decisions concerning my case. This reconsideration must be undertaken with a correct and proper application of the aforementioned legal provisions of s379A ( 5), particularly in light of the issues raised during the Federal Circuit and Family Court of Australia proceedings. I assert the necessity of receiving a fair assessment leading to a just outcome.
   3. Seeking an order that the proceedings in my case be reinstated
   4. The Court's Orders made on 27/11/2027, or the accompanying Reasons for Judgment, contain an error of fact by stating that"APPEARANCES: No appearance made by or for the applicant. Mr C. Dietrich (Minter Ellison Lawyers) appeared on behalf of the first respondent via telephone. The Applicant did attend the hearing on 27/11/2025, the court Transcript, the interpreter, and Mr C. Dietrich (Minter Ellison Lawyers) can prove that. The Court's error of fact that the Applicant failed to appear was a fundamental consideration in the Court's decision to dismiss the application, thereby resulting in a miscarriage of justice. So I apply that my case be reinstated

1. Review of a Registrar's decision may be sought under s 256 of the FCFCOA Act. The review is to proceed on a de novo basis: r 3.08 of the GFL Rules. This means, in the present case, that the Court is required to determine whether the Substantive Application ought to be summarily dismissed.
2. Section 143 of the FCFCOA Act relevantly provides as follows:

(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. Rule 23.08(1) of the GFL Rules relevantly provides:

(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...

1. In considering an application for summary dismissal, the Court is not required to determine whether or not the Tribunal's decision is affected by jurisdictional error. Rather, the Court is concerned with whether the case raises a real or genuine dispute that might reasonably be resolved in an applicant's favour: see AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33] (Judge Given) and the cases cited therein.

1. I accept the Minister's submissions as to why the grounds raised in the Substantive Application lack any reasonable prospect of success.
2. To the extent that the grounds stated in the Substantive Application took issue with the Delegate's decision, this Court lacks jurisdiction to review that decision: s 476 of the Migration Act 1958 (Cth) (Act).
3. I am unable to discern any arguable basis for finding that the Tribunal misapplied s 368B(5) of the Act, s 99 of the ART Act, or otherwise misapplied the relevant law.
4. Section 368B(5) of the Act required the Tribunal to notify the applicant of the dismissal decision through providing the applicant with a copy of its written statement of decision made under s 368B(2) of the Act. The copy was required to have been given to the applicant within 14 days after the date of the decision, by one of the methods specified in s 379A of the Act.
5. The Tribunal notified the applicant of the dismissal decision, within 14 days, by transmitting a copy of the decision by email to the last email address that had been provided to the Tribunal by the applicant in connection with the review. This was a method specified in s 379A(5) of the Act. The applicant was therefore taken to have received the document by 7 April 2025: s 379C(5) of the Act.
6. The dismissal decision was predicated upon the applicant's non-appearance at a hearing before the Tribunal: s 99 of the ART Act. I accept the Minister's submission that the applicant "received appropriate notice of the date, time and place" of the hearing, as required by s 99(b) of the ART Act: CB 139. The date, time and place of the hearing were set out in the hearing invitation. The hearing invitation was sent by email, in accordance with s 379A(5) of the Act, 18 days in advance of the scheduled hearing. The correspondence sent to the applicant explained that if the applicant did not appear at the scheduled hearing, then the Tribunal may dismiss the application for review without further consideration of the application or the information before it (CB 140-141; 145-146).
7. I accept the Minister's submission that no ground of legal unreasonableness in relation to the dismissal decision would enjoy a reasonable prospect of success in the present case. This is in circumstances where:

(a) although there had been delay in determination of the matter by the Tribunal (of some years), the applicant had been given advance notice, by email sent on 13 February 2025, of the Tribunal's intention to progress the matter: CB 137. In this regard, the applicant had been asked to complete a "pre-hearing information form". The applicant did not respond to this request by the Tribunal;

(b) the applicant similarly did not provide the requested "Response to hearing notice" form that had been provided with the hearing invitation;

(c) the applicant had not otherwise engaged with the Tribunal (or its predecessor) in any substantive way after lodging her application for review, although she did engage in some correspondence over time regarding administrative matters involving her contact details and Medicare (CB 105-109, 112, 115-135, 151-154) (cf Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393 per Mortimer J as her Honour was then known);

(d) whilst the applicant provided a change of contact details form to the Tribunal on 31 March 2025 (CB 153), there was no information before the Tribunal to indicate that the hearing invitation had not been received (or the prior email requesting completion of a "pre-hearing information form");

(e) the Tribunal sent SMS hearing reminders to a phone number that had been nominated by the applicant in her application to the Tribunal, on 31 March and 4 April 2025 (CB 164). Despite utilisation of this alternative method of contact, the applicant did not attend the hearing before the Tribunal; and

(f) the dismissal decision was made subject to a statutory right to seek reinstatement: see EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 per Lee J at [19] and [21].

1. Within the above context, I accept the Minister's submission that the Tribunal's reasoning contained within the dismissal decision provided an intelligible justification for the dismissal decision. That justification was found in the Tribunal's consideration that the applicant had been appropriately notified of the hearing, had also not completed the earlier requested "pre-hearing information form", had been sent SMS reminders to an alternative method of contact, and yet had not attended the scheduled hearing despite being forewarned of the consequences of not doing so.
2. The Tribunal was not obliged to consider the merits of the underlying protection visa application, within the context of its exercise of discretion under s 99 of the ART Act: see AGK25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1402 at [41] (Judge Gerrard).
3. As the applicant did not apply for reinstatement within the requisite period, the Tribunal was required to make the confirmation decision: ss 368C (5) of the Act; see also AYT16 v Minister for Immigration and Border Protection [2017] FCA 252; (2017) 71 AAR 491 at [9]-[11] per Perram J.
4. For the foregoing reasons, I accept the Minister's submission that the Substantive Application has no reasonable prospect of success.

ADDITIONAL MATTERS RAISED IN THE REVIEW APPLICATION

1. Grounds 1 and 2 of the Review Application referred to s 379A(5) of the Act. It is unclear what was intended by the reference to a lack of jurisdiction, in circumstances where neither the Tribunal nor the Court appears to have found that they lacked jurisdiction to conduct a review. To the extent that the applicant objects to a finding that this Court lacks jurisdiction to review the Delegate's decision, for reasons given above, this Court has no jurisdiction under the Act to review that decision.
2. As observed above, s 379A of the Act specified methods by which a document may be given to a person by the Tribunal. One of those methods, specified in s 379A(5) of the Act, was through a Tribunal official transmitting the document by email to the last email address provided to the Tribunal by the recipient in connection with the review. That was the method utilised by the Tribunal in the present case. I see no arguable basis for finding that this provision was misunderstood or misapplied by the Tribunal. The applicant did not elect to expand upon grounds 1 or 2 when given the opportunity to do so at the hearing before the Court.
3. Ground 3 did not assert relevant error on the part of the Tribunal, but simply articulated relief sought by the applicant.
4. Ground 4 took issue with the fact that 'no appearance' initially appears to have been recorded for the applicant on the record of orders made by the Registrar on 27 November 2025. The applicant appears to have objected to this on the basis that she had attended the hearing in question, albeit not the delivery of judgment. As I explained at the Review Application hearing, however, it is customary to record appearances on orders when they are made at the delivery of judgment. This record, therefore, does not indicate that the Registrar misunderstood that the applicant had not attended the hearing of the summary judgment application. The situation regarding appearances nonetheless appears to have been subsequently clarified on the orders made, under the 'slip rule', confirming that the applicant attended the summary judgment hearing, but not the delivery of judgment.
5. In any event, this and other complaints made by the applicant about the conduct of the review hearing do not answer the question that I am required to determine on a de novo basis in this case; namely, whether the Substantive Application ought to be summarily dismissed. This is so even if the applicant were able to demonstrate some form of error on the part of the Registrar.

1. Having regard to the above, I accept the Minister's submission that the Substantive Application lacks any reasonable prospect of success.
2. The Review Application will accordingly be dismissed. I will hear from the parties in relation to costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.