GAM24 v Minister for Immigration and Citizenship

1. On 20 February 2026, 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 27 February 2026, 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 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 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 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 dismissal 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 granted. Accordingly, I dismiss the applicant's application for review of the Registrar's Decision.

1. The background to this matter was set out at [3] to [18] of the Minister's submissions accepted for filing on 13 February 2026, 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 22 December 2017 (Court Book (CB) 1 to 21).
3. On 29 April 2020, a delegate of the Minister refused the applicant a protection visa (delegate's decision) (CB 42 to 48).

1. On 9 May 2020, the applicant lodged an application for review of the delegate's decision to the Administrative Appeals Tribunal (Tribunal) (CB 49 and 50). The applicant provided his email address as "wumin509@protonmail.com" (ProtonMail Address) and a mobile telephone number (M1) (CB 50). The applicant did not appoint a representative or an authorised recipient.
2. On 13 June 2024, the Tribunal emailed the applicant at the ProtonMail Address, inviting him to attend a hearing in person on 3 July 2024 at 2:00pm (hearing invitation) (CB 56 to 58). The hearing invitation relevantly stated:

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...

...

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. The Tribunal also sent SMS hearing reminders to the applicant's telephone number M1 on 26 June 2024 and 2 July 2024 (CB 73).

1. On 3 July 2024, the applicant failed to attend the scheduled Tribunal hearing (CB 59 to 61).
2. The Tribunal dismissed the applicant's application for review of the delegate's decision pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (Migration Act) for the applicant's failure to appear at the Tribunal hearing (Dismissal Decision) (CB 66), and notified the applicant by email to the ProtonMail Address of the Dismissal Decision and the applicant's entitlement to apply for reinstatement by 17 July 2024 (CB 64). A fact sheet provided to the applicant with the notification of the Dismissal Decision further stated as follows (CB 67 and 68):

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. On 18 July 2024, noting the applicant had not applied for reinstatement within the 14-day period, the Tribunal confirmed by written statement the Dismissal Decision pursuant to s 426A(1E) of the Migration Act (Confirmation Decision) (CB 71 and 72). On 22 July 2024, the Tribunal notified the applicant of the Confirmation Decision by email from the Tribunal to the ProtonMail Address and enclosing a copy of a written statement of decisions and reasons pursuant to s 426B(5) of the Migration Act (CB 69).

APPLICATION FOR JUDICIAL REVIEW AND PROCEDURAL HISTORY

1. On 13 August 2024, the applicant filed an application in this Court seeking judicial review of the Tribunal's Confirmation Decision dated 18 July 2024. The following grounds for judicial review were raised in the application (as per original):
   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 : s426A(1A(b),S426B(5) of the Migration Act 1958 properly to assess my case
2. The affidavit of the applicant filed on 13 August 2024 repeated the grounds for judicial review referred to in the preceding paragraph.
3. On 13 February 2026, the Minister in his written submissions sought an order for summary judgment pursuant to r 23.08(1)(a) of the GFL Rules on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding.
4. On 20 February 2026, pursuant to r 23.08(1)(a) of the GFL Rules, Judicial Registrar Cummings entered summary judgment against the applicant in relation to the application for judicial review on the basis that the applicant had no reasonable prospects of success, and ordered the applicant pay the Minister's costs fixed in the sum of $4,553.02.
5. On 27 February 2026, the applicant filed in this Court an application for review of the Registrar's Decision and the corresponding orders dated 20 February 2026. The applicant sought the following orders in his application for review (as per original):

1 The orders 2 and 3 of 20 February 2026 be set aside.

1. On 2 March 2026, the proceedings were docketed to my list and set down for hearing before me today.

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 Wang, a solicitor from Clayton Utz. Mindful of the Court's duty to self-represented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister 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 accepted for filing on 13 February 2026. I ensured the applicant had interpreted to him the relevant documents except the Court Book.

Documents sought to be relied upon by the applicant

1. The applicant's application filed on 13 August 2024 sets out the applicant's grounds for judicial review.

1. The Minister relied on his written submissions accepted for filing on 13 February 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 two grounds for judicial review raised by the applicant.
2. To the extent that the applicant seeks to contend jurisdictional error on the part of the delegate in ground 1 and 2 for judicial review, this Court does not have jurisdiction to review the delegate's decision as it is a primary decision: ss 476(2)(a) and 476(4)(a) of the Migration Act.
3. Accordingly, I find that there are no reasonable prospects of success in relation to ground 1 and 2 in relation to the challenge to the decision made by the delegate.

1. By ground 2, the applicant also alleges that the Tribunal improperly applied ss 426A(1A)(b) and 426B(5) of the Migration Act in assessing the applicant's case.
2. 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 426A(1A)(b) of the Migration Act, and to confirm such decision thereafter pursuant to s 426A(1E), was properly made and legally reasonable.
3. I find that there was no procedural unfairness or improper application of ss 426A(1A)(b) and 426B(5) of the Migration Act because the Tribunal properly discharged its duty and powers and properly applied ss 426A(1A)(b) and 426B(5) for the following reasons:

(a) As set out at [9] of this judgment, the Tribunal invited the applicant to attend a Tribunal hearing in person, which invitation was sent to the applicant's ProtonMail Address as identified in his application for review of the delegate's decision. The invitation stated that the hearing was to be in person and 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 14 days after receiving notice of the dismissal (CB 57 and 58).

(b) As set out at [11] of this judgment, on 3 July 2024 the applicant failed to attend the scheduled Tribunal hearing.

(c) The Tribunal had power under ss 426A(1A) and 426A(1E) of the Migration 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 Dismissal Decision at [2] of its reasons correctly identified that it was satisfied as to the two preconditions, and noted the Tribunal sent SMS reminders to the applicant of the hearing five business days and one business day before the scheduled hearing to the applicant's nominated telephone number M1, and accordingly exercised power to dismiss the application under s 426A(1A)(b) of the Migration Act.

(d) On 3 July 2024, the Tribunal sent to the applicant at his ProtonMail Address notification of the decision to dismiss his application and provided a copy of the Tribunal's written statement of decision pursuant to s 426B(5) of the Migration Act. The said notification letter expressly stated that the applicant could seek reinstatement of the application for review before the Tribunal but had to do so by 17 July 2024. The applicant was clearly on notice as to his rights for reinstatement and it was a matter for him if he chose not to pursue those rights.

(e) As no reinstatement application was made to the Tribunal, pursuant to s 426A(1E) of the Migration Act, the Tribunal "must confirm the decision to dismiss the application, by written statement under section 430" of the Migration Act. Further, s 426A(1F) of the Migration Act provided 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 18 July 2024 to confirm the decision to dismiss the applicant's application for review of the delegate's decision.

1. Accordingly, I find there are no reasonable prospects of success in relation to ground 2.

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 18 July 2024. Therefore, I would make the same orders made by Judicial Registrar Cummings, which were as follows:
   1. Pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), and r 23.08(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth), there be judgment for the first respondent against the applicant for the whole of the applicant's claim.

2. The applicant's application for judicial review be dismissed.

3. The applicant pay the first respondent's costs fixed in the sum of $4,553.02.

1. 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 did not seek costs in addition to the $4,553.02 ordered by the Judicial Registrar. Given the procedural history of this matter, I allow Order 3 of Judicial Registrar Cummings' orders to remain.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.