Federal Court of Australia

EBW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 341

ORDERS

THE COURT ORDERS THAT:

1.    The time within which the applicant has to apply for leave to appeal be extended to 4.30pm (AEDT) on 20 December 2023.

2.    The application for leave to appeal be dismissed.

3.    The applicant pay the first respondent’s costs of the application to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    These reasons concern an application for an extension of time and leave to appeal from the order of the primary judge dismissing an application for review of the exercise of a power of the Federal Circuit and Family Court of Australia (Division 2) delegated to a registrar of that court. The registrar made an order summarily dismissing the proceeding. The proceeding dismissed was an application for judicial review of a decision of the second respondent (Tribunal) by which a member of that tribunal dismissed the applicant’s application for review of a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a protection visa.

2    At the relevant time, Pt 7 of the Migration Act 1958 (Cth) made provision for the Tribunal to review decisions to refuse to grant a protection visa. Part 7 included provisions by which the applicant was to be invited to appear before the Tribunal and was to be given notice of the day, time and place at which the applicant was scheduled to appear. The applicant was invited to appear, but, due to a technological difficulty, the hearing was adjourned to another day. The applicant was given notice of the day, time and place of the adjourned hearing in accordance with s 425 and s 425A of the Migration Act, but the applicant failed to appear on that day. These facts enlivened the Tribunal’s power to dismiss the application without any further consideration under s 426A(1A)(b) of the Migration Act which the Tribunal exercised. Thereafter, the applicant was notified of the non-appearance decision and given a copy of a written statement setting out the reasons for that decision in accordance with s 426B of the Migration Act. Pursuant to s 426A(1B) the applicant had 14 days after receiving notice of the non-appearance decision to apply to the Tribunal for reinstatement of the application after it was dismissed. The applicant failed to apply for reinstatement and, as a consequence, the Tribunal was required to confirm the decision to dismiss by a written statement in accordance with s 426A(1E). The Tribunal made a written statement of the confirmation decision and notified the applicant of that decision in accordance with s 430 and s 430A of the Migration Act. The applicant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

3    The registrar of the Federal Circuit Court made the order summarily dismissing the application for judicial review under r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) on the ground that the applicant had no reasonable prospects of successfully prosecuting the application. The registrar exercised power delegated under s 254(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 21.01(1) of the Federal Circuit Court Rules. The applicant applied for review of the exercise of that delegated power under s 256(1) of the Federal Circuit Court Act (2021) and r 21.02 and r 21.03 of the Federal Circuit Court Rules. The primary judge made an order dismissing that application: EBW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1130.

4    An appeal to this Court from an interlocutory judgment of the Federal Circuit Court cannot be brought without leave: s 24(1)(d), s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Rule 35.13 of the Federal Court Rules 2011 (Cth) provides that an application for leave to appeal must be filed within 14 days after the judgment was pronounced or the order was made. However, a person may apply for an extension of that time under r 35.14 of the Federal Court Rules. Here, the application for leave to appeal was made more than 14 days after the primary judge’s orders and, therefore, an extension of time to make that application is required.

5    Neither the proposed grounds of appeal in the draft notice of appeal nor the grounds of review in the application in the Federal Circuit Court are particularly informative of the asserted jurisdictional error on the part of the Tribunal or appealable error on the part of the primary judge. Making due allowance for the applicant’s disadvantage as a self-represented litigant with limited command of English and giving the applicant’s court documents a beneficial construction aided by her oral submissions, the substance of the applicant’s complaint is an assertion that the primary judge failed to accord her procedural fairness. In essence, the primary judge adopted a procedure that deprived the applicant of an oral hearing and the ability to explain and particularise in more detail her grounds of judicial review before the primary judge determined, in effect, that the grounds failed to disclose any reasonably arguable jurisdictional error.

6    Having regard to these matters and the nature of the registrar’s exercise of delegated power under r 13.13 and the power the primary judge exercised under s 256, a preliminary question arises as to whether the primary judge’s order was interlocutory and, therefore, whether an extension of time and leave to appeal is necessary. If interlocutory, the principal issue is whether there is sufficient merit in the proposed grounds of appeal to warrant an extension of time and grant of leave to appeal. Regarding the merits, there are two issues for consideration.

(1)    Is it arguable that the primary judge failed to accord the applicant procedural fairness by deeming the applicant to have consented to a determination of her application on the papers?

(2)    Is it arguable that any failure to accord the applicant procedural fairness could have made a difference to the outcome of the review application in that there were oral submissions the applicant could have or would have made by which she could have or would have raised reasonably arguable grounds of judicial review?

7    For reasons that follow, the primary judge’s orders were interlocutory and the applicant requires an extension of time and leave to appeal. While there is merit in the applicant’s complaint that the primary judge failed to accord her procedural fairness, it would be futile to remit the matter to the primary judge because it is not reasonably arguable that a rehearing would not inevitably result in the same outcome. I would grant an extension of time to apply for leave, but dismiss the application for leave because the primary judge’s orders are not attended by sufficient doubt to warrant the grant of leave to appeal.

The Tribunal’s decision

8    The applicant is a citizen of the People’s Republic of China. She arrived in Australia on 12 October 2017. At that time she was the holder of a Visitor (Subclass 600) visa. On 22 November 2017 the applicant applied for a Protection (Class XA) (subclass 866) visa, claiming that she and her family feared harm from government officials in China. On 5 April 2018 a delegate of the Minister refused the applicant’s application for the protection visa on the basis that the delegate was not satisfied that she was owed protection obligations under s 36(2) of the Migration Act.

9    On 15 April 2018 the applicant lodged an application for review of the delegate’s decision to refuse to grant the protection visa in the Tribunal. On 31 August 2021 the Tribunal sent a letter to the email address nominated by the applicant in her review application. The letter invited the applicant to attend a remote hearing on 16 September 2021 to give evidence and present arguments in support of her application. The letter indicated that the hearing would be conducted by telephone and confirmed the phone number provided by the applicant. The notice provided information about the steps the applicant should take if she were not able to appear as scheduled and the potential for dismissal of the application for failure to attend.

10    On 16 September 2021 the Tribunal attempted to contact the applicant via telephone. The hearing record indicates there is a possibility that there was a technological difficulty which resulted in the hearing being adjourned to a later date. On 20 September 2021 the Tribunal sent another letter to the applicant indicating that the hearing had been adjourned to 11 October 2021 as a result of ‘circumstances beyond [the Tribunal’s] control’. The letter invited the applicant to attend the hearing by telephone and provided similar information to the earlier notice about steps to be taken if she were not able to appear as scheduled and the potential for dismissal for failure to attend.

11    The applicant failed to appear at the hearing scheduled on 11 October 2021. A document entitled ‘Case Notes’ indicates that the Tribunal attempted to contact the applicant on the number she had provided three times. On 12 October 2021 the Tribunal sent a covering letter, copy of its statement of decision and an information sheet about the dismissal of applications to the applicant’s nominated email address, indicating that it had dismissed her application for review under s 426A(1A)(b) of the Migration Act for failing to attend that hearing. The covering letter indicated that the applicant could apply for reinstatement of the application within 14 days of the date of the decision. The information sheet indicated that if the applicant failed to apply for reinstatement within the 14-day period, the Tribunal would confirm the decision to dismiss the application and the delegate’s decision to refuse the visa will remain in force.

12    The statement of reasons for the non-appearance decision under s 426B was dated 12 October 2021 and set out the following:

…

1.    The review applicant was invited under s 425 of the Migration Act 1958 (Cth) (the [Migration] Act) to appear before the Tribunal by telephone on 11 October 2021. The applicant was advised that she would be contacted by telephone at the scheduled time.

2.    The invitation stated that if she 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. 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 441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.

4.    In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.

…

13    The applicant did not apply for reinstatement of the application within the 14-day period. On 27 October 2021, as required by s 426(1E) of the Migration Act, the Tribunal confirmed the dismissal decision.

14    The s 430 confirmation decision and statement of reasons is dated 27 October 2021 and is follows:

…

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 April 2018 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the [Migration] Act).

2.    On 12 October 2021 the Tribunal dismissed the application under s 426A(1A)(b) of the [Migration] Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3.    The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s 426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

4.    As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.

DECISION

5.    The Tribunal confirms the decision to dismiss the application.

…

The primary judge’s decision

15    The applicant represented herself in the proceeding in the Federal Circuit Court (and in this Court). Mandarin is her first language. She has limited command of English and required the assistance of an interpreter.

16    On 10 November 2021 the applicant filed an application for judicial review of the Tribunal’s dismissal and confirmation decision. The Minister filed a response to the application on 7 December 2021. The applicant’s grounds of review were as follows:

Jurisdictional error has been made.

1.    Tribunal has power to dismiss my application. But it shall consider all material related to my application.

Tribunal did not do it as required. So its action did not comply with Migration Act.

2.    Tribunal did not consider my claims and did not give reasons to refuse my application for review.

17    The Minister evidently made an application for summary dismissal of the application for judicial review the applicant filed in the Federal Circuit Court. On 2 February 2023 a registrar of the Federal Circuit Court listed the application for a summary dismissal hearing and made orders for the Minister and the applicant to file written submissions. The Minister filed written submissions, but the applicant did not do so.

18    A registrar heard the application in the exercise of the delegated power under r 21.01(1) and r 13.13 of the Federal Circuit Court Rules. On 6 June 2023 a registrar made orders under r 13.13(a) summarily dismissing the application for judicial review with costs.

19    On 10 June 2023 the applicant filed an application to review the decision of the registrar in accordance with r 21.02 and r 21.03 of the Federal Circuit Court Rules. On 28 June 2023 the primary judge made orders which required the parties to elect whether the review application should proceed on an oral hearing or be determined on the papers. The orders required the parties to notify the court of their preferences and provide a timetable for filing and service of written submissions. The orders provided that in the event of no election the parties would be taken to have consented to the review application being heard and determined in chambers pursuant to and for the purposes of s 136(4)(b) of the Federal Circuit Court Act (2021). The Minister indicated that he consented to the application being heard and determined in chambers. The applicant did not respond. The primary judge considered that the applicant was taken to have consented to the court determining the matter in chambers based on the materials on the court file. The matter was subsequently determined in chambers and on 1 December 2023 the primary judge made orders that the application for review of the registrar’s decision be dismissed.

20    The primary judge set out and described the background facts relating to the application for the grant of a protection visa, the delegate’s decision to refuse to grant the protection visa, the application for review of that decision in the Tribunal, the Tribunal’s decision, the application in the Federal Circuit Court and the review application: PJ [3]-[27], [31]-[36]. In the course of doing so the primary judge correctly indicated that the review application required the primary judge to consider the application for judicial review de novo: PJ [28]. The primary judge set out the grounds of review and expressed the view that they have the same essence; namely, that the Tribunal dismissed the application for review without substantive consideration: PJ [29], [37]. The primary judge observed, correctly, that whether to proceed to dismiss the application for a failure to attend was a matter within the discretion of the Tribunal: PJ [38]. The primary judge then said:

39    While it can be inferred from the applicant’s grounds of review that she would have preferred that the Tribunal had proceeding under s 426A(1A)(a) of the [Migration] Act, there is no allegation (much less any material) to support a contention that the Tribunal failed to consider exercise of, or failed to exercise, that discretion reasonably. In fact, it may have been more advantageous to the applicant for the Tribunal to have proceeded as it did (by not substantively determining her application), lest case some misadventure had befallen her which might lead to a reinstatement application and enabled her later to appear to give evidence and present arguments in relation to her case. In any event, no such reinstatement was forthcoming.

40    I accept the submission of the Minister that the three grounds of review are misconceived and fail to identify any arguable jurisdictional error on the part of the Tribunal. The Tribunal did not make any decision about the substance of the applicant’s claims for protection for the reasons outlined above. As such, the grounds which allege otherwise are misconceived and there appears to be no arguable error in the manner in which the Tribunal proceeded.

CONCLUSION

41    I am of the view that there is no real question of fact or law in dispute in this matter which might realistically be resolved in the applicant’s favour if the matter were to proceed to a final hearing. The Tribunal was not only expressly permitted to dismiss the proceedings but, in relation to the confirmation decision, required by law to do so once the applicant failed to seek reinstatement.

42    In all of the circumstances of this case, I am satisfied that the Minister has established that the judicial review application lacks a reasonable prospect of success and should be summarily dismissed. In considering the application on a de novo basis, I have reached the same conclusion as did the Registrar. I would accede to the application that the proceedings be summarily dismissed pursuant to r 13.13 of the [Federal Circuit Court] Rules.

The proposed appeal

21    The draft notice of appeal contains four proposed grounds of appeal. These are expressed as follows:

There exist Jurisdictional errors in my case .

1.    Tribunal failed to consider all material related to my application.

2.    Tribunal did not follow relevant law to handle my case.

[3.]    Tribunal did not check if I should be protected and did not give detailed reasons to dismiss my application.

[4.]    The Judge did not accept my claims, which led to the breach of the law.

22    As expressed, the proposed grounds do not comply with r 36.01(2)(c) of the Federal Court Rules in that they do not specify the grounds relied on in support of the appeal in a form that identifies any appealable error on the part of the primary judge.

23    On 18 January 2024 a registrar of the Court made certain case management orders relating to the application. These required the Minister to file and serve a copy of the Federal Circuit Court’s reasons, orders and application book. The orders also made provision for the Minister and the applicant to file and serve written submissions before the hearing. The Minister complied with these orders, but the applicant filed no written submissions.

24    As already noted, the applicant’s first language is Mandarin and in the hearing before this Court she was assisted by an interpreter. Based on my observations, I am not confident that the applicant has any real ability to comprehend written or spoken English.

25    At the commencement of the hearing I confirmed that the applicant had received the Minister’s submissions and that she had a copy of the application book. I provided the applicant with an overview of the procedure on the application and the elements that she was required to address including the matters to which reference is made in paragraphs [22] and [33] – [35] of these reasons. I adjourned the hearing to allow the applicant to have the interpreter read the Minister’s submissions to her and for her to collect her thoughts and put into her own words the reasons that she considers that the primary judge was wrong to summarily dismiss her application for judicial review and the reasons she considers that the Tribunal was wrong to dismiss her review application.

26    After the adjournment the applicant, in effect, restated each of the general grounds of appeal set out in the draft notice of appeal. She was unable to add anything of substance to those grounds by way of further or more detailed explanation. The substance of her proposed grounds of appeal is that the primary judge failed to consider her claims regarding the Tribunal’s errors. Giving the proposed grounds and oral submissions a broad and beneficial interpretation, I take the applicant to assert that the primary judge failed to accord the applicant procedural fairness because she was not given a reasonable opportunity to make oral submissions and explain her grounds of review to the primary judge.

Preliminary question: Was the primary judge’s order interlocutory?

27    The Minister submits that the primary judge’s order was interlocutory and, therefore, an extension of time and leave to appeal is necessary. As the applicant filed an application for extension of time and for leave to appeal, I infer that she accepts that the primary judge’s order was interlocutory. Nonetheless, while it appears to be common ground between the parties that the primary judge’s order was interlocutory and leave to appeal is required, given that the applicant is self-represented and requires an interpreter to participate in the proceeding, I consider it necessary to determine whether or not leave to appeal is necessary.

28    Section 143(2) of the Federal Circuit Court Act (2021) provides, relevantly, that the Federal Circuit Court may give judgment for a respondent against an applicant in relation to the whole or any part of a proceeding if the applicant has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. Rule 13.13(a) of the Federal Circuit Court Rules provides, relevantly, that the Court may order that a proceeding be dismissed generally or in relation to any claim for relief in the proceeding if the Court is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim. These powers are in similar terms to s 31A of the Federal Court Act and r 26.01(1)(a) of the Federal Court Rules. The principles applicable to the exercise of these powers are well established. In short, for the power to be exercised it is not necessary that the claim be ‘manifestly groundless’ or ‘hopeless’, but nevertheless the power should be exercised with caution and requires a practical judgment as to whether there is more than a fanciful prospect of success: Spencer v The Commonwealth of Australia [2010] HCA 28; 241 CLR 118 [22]-[27] (French CJ, Gummow J), [49]-[60] (Hayne, Crennan, Kiefel and Bell JJ).

29    Section 254(1) of the Federal Circuit Court Act (2021) provides that the judges, or a majority of them, may make rules of court delegating any of the powers of the Federal Circuit Court to a delegate or prescribed class of delegate. A delegated power when exercised by a delegate is taken for all purposes to have been exercised by the Federal Circuit Court or a judge of that court: s 254(4). Rule 21.01(1) of the Federal Circuit Court Rules provides, relevantly, for the purposes of s 254(1) that the power in r 13.13 to order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding is delegated to a registrar of the Federal Circuit Court.

30    Section 256(1) of the Federal Circuit Court Act (2021) provides that a party to a proceeding in which a registrar has exercised a delegated power may apply to the Federal Circuit Court for review of the exercise of that power. Rules 21.02 – 21.04 of the Federal Circuit Court Rules make provision for the timing and procedure for applications for review of the exercise of delegated power. The review must proceed by way of a hearing de novo: r 21.04(1); Bechara v Bates [2021] FCAFC 34; 286 FCR 166 at [17]-[31] (Allsop CJ, Markovic and Colvin JJ). Upon an application for review of the exercise of delegated power, the Federal Circuit Court may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised: s 256(2). That power extends to an order setting aside the exercise of the delegated power and any orders necessary to unwind the effect of the exercise of the delegated power: Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143; 286 FCR 494 at [2]-[4], [18]-[29] (Allsop CJ, Markovic and Derrington JJ agreeing). However, it is not necessary to make any order on review and, where no order is made, then the delegated exercise of the power continues as a valid and authorised exercise of judicial power from the time of the exercise of that delegated power: s 254(4) of the Federal Circuit Court Act (2021).

31    Section 24(1D)(b) of the Federal Court Act provides that a decision granting or refusing summary judgment under s 31A is taken to be an interlocutory judgment for the purposes of s 24(1A). Section 24(1D)(ca) is to the same effect with respect to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) which was in substantially the same terms as section 31A of the Federal Court Act. There is no equivalent deeming provision with respect to s 143 of the Federal Circuit Court Act (2021). Prior to the enactment of s 24(1D) of the Federal Court Act there had been a degree of conflicting authority and uncertainty as to whether an order for summary judgment under s 31A was a final or interlocutory order. However, that question was settled in favour of an interlocutory order in Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; 178 FCR 401 at [42]-[43] (Spender, Graham and Gilmour JJ) citing Luck v University of Southern Queensland [2009] FCAFC 73; 176 FCR 268 at [101] (Rares J, Graham J agreeing). In my view, the reasoning in Kowalski and Luck apply equally to a decision under r 13.13 of the Federal Circuit Court Rules such that an order dismissing a proceeding or claim for relief under that order on the ground that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim is interlocutory.

32    The review application was a rehearing of the application for summary dismissal. Although the power to review that the primary judge exercised and the order dismissing the application for review was under s 256 of the Federal Circuit Court Act (2021), it must necessarily follow from the de novo nature of the review that the primary judge’s order takes its character from the application the subject of the review and the order made in the exercise of the delegated power which was left undisturbed by the primary judge’s order dismissing the review application. Thus, the primary judge’s order dismissing the application for review was an interlocutory order and the applicant requires leave to appeal from that order.

Extension of time and leave

33    The principles applicable to the grant of an extension of time and for leave to appeal are well established.

34    Applications for an extension of time are not granted unless it is proper to do so because the legislative time limits are not to be ignored. In general, the factors the Court will take into account in determining whether to grant an extension of time include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent (but, absence of prejudice is not sufficient of itself to grant an extension): Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; 3 FCR 344 at 348-349 (Wilcox J); Parker v The Queen [2002] FCAFC 133 at [6]. See, also, SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). Ignorance of the time limit is not regarded as a satisfactory explanation for delay. However, a less persuasive explanation may be sufficient where the required extension is for a comparatively short period of time: SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6] (Flick J). The overarching consideration for the Court is whether it is in the interests of the administration of justice to grant the extension of time in the circumstances of the case. Thus, where the delay is short and no injustice will be occasioned to the respondent, the interests of justice would ordinarily require the extension of time to be granted provided there is sufficient merit in the grounds of the appeal to justify the hearing of the application for leave to appeal: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [7]; Hasan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 788 at [13]-[14].

35    In general, the discretion to grant leave to appeal is exercised having regard to two interrelated factors. First, whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by the appellate court. Second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ).

36    In this case, the applicant’s explanation was that she ‘did not know the procedure and the time limit for the appeal’. Notwithstanding that the applicant is self-represented and English is not her first language, she has not said that she was unable to comprehend the rules due to these disadvantages. Although the delay was short and there is no evident prejudice to the Minister, in my view, ignorance of the time limit for applying for leave to appeal is not a satisfactory explanation for delay. Therefore, the primary consideration for the exercise of the power to extend time is the merit of the application for leave to appeal. As for leave to appeal, there is no question that substantial injustice would result if leave to appeal were refused. Therefore, the merit of the proposed appeal is also the principal factor for consideration on the question of leave.

Applicable principles

37    It is axiomatic that, in the exercise of judicial power, a judge is obliged to accord procedural fairness to litigants appearing before him or her and the requirements of procedural fairness include the provision of a reasonable opportunity for litigants to present evidence and make submissions. In general, a person who has not received a fair hearing is entitled to have the judgment or order resulting from that hearing set aside on appeal and to have the matter remitted to the primary court for rehearing. However, that general principle is subject to the qualification that an appellate court will not remit the matter for a rehearing if it would be futile to do so because a rehearing would inevitably result in the same outcome: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [21] (Feutrill J) and the authorities there cited.

38    Where, as here, at least one party is a litigant-in-person additional considerations apply to the Court’s duty to ensure a fair hearing. There is a general duty to ensure that litigants do not suffer any disadvantage from exercising their right to be self-represented. While the duty does not extend to the provision of judicial advice, there is an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial (or hearing): Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479 at [51]-[57]; SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [37]; Hamod v New South Wales [2011] NSWCA 375 at [311]-[316].

39    When speaking of the consequences of a failure to adequately particularise a ground of appeal by a litigant-in-person (which are equally applicable to grounds of judicial review), in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, Colvin J made the following observations:

8    The consequences of a failure to particularise a ground will depend upon the circumstances. Where a legally represented party has been afforded an opportunity to remedy the failure to comply then it is to be expected that the ground would be dismissed for failure to comply with the Rules and without any consideration as to whether there may be underlying merit.

9    However, it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister’s discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise.

10    Further, in these cases, a submission by counsel appearing for the Minister that a decision under appeal is not attended with any doubt, or sufficient doubt or error must reflect the independent judgment of counsel after considering all of the materials in the performance of counsel’s paramount duty to the Court. It is not to be based upon the lack of particularisation of ground by an appellant who is appearing in person.

40    These observations have been cited with approval in a number of subsequent decisions of other judges of this Court: e.g., BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 531 at [35] (Wheelahan J); GKH18 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1125 at [26] (Banks-Smith J); BIK18 v Minister for Home Affairs [2019] FCA 788 at [3] (McKerracher J); BTU17 v Minister for Immigration and Border Protection [2019] FCA 538 at [28] (Thawley J); EHB17 v Minister for Home Affairs [2018] FCA 1280 at [27] (Thawley J).

41    In COS16 v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 McKerracher J (at [20]) described the role of the Court in a proceeding such as the present one in the following terms which apply equally to the applications before me and the application before the primary judge:

It is well-established that it is not the role of the Court to examine the reasons of the primary judge in detail in order to identify potential grounds of appeal: see, for example, BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J (at [10]). However, in the case of an unrepresented appellant, it is preferable for the Court to review the reasons under consideration and to determine whether there is any self-evident error as to the manner in which the Court or Tribunal has resolved the grounds of review previously advanced and which it would appear are sought to be re-agitated on appeal: see BGZ15 (at [11]). However, such an examination for an obvious error may fall well short of the Court parsing and analysing an administrative decision with a view to identifying a potential argument as to jurisdictional error. In the absence of self-evident error, there is no duty or function of the Court to articulate a question of law or to identify an error.

Is it arguable that the primary judge failed to accord the applicant procedural fairness?

42    Section 136(4) of the Federal Circuit Court Act (2021) provides, relevantly, that the jurisdiction of the Federal Circuit Court is to be exercised by a judge of that court sitting in chambers where the parties to the proceeding have consented to the court making a decision in relation to the proceeding without an oral hearing. While the primary judge had power to make an order administratively by which a party would be taken to have consented to a determination on the papers in the absence of an election to have an oral hearing, where one of the parties is self-represented and English is not that party’s first language it is doubtful that it would be appropriate to take that party to have so consented unless the effect of the order and a failure to make an election is explained to and understood by that party. There is nothing to suggest that the primary judge took any steps to have the effect of the order explained to the applicant or to satisfy herself that the applicant understood the effect of a failure to make an election.

43    Having regard to the observations of Colvin J in DQQ17, it is also doubtful that it would be appropriate to dismiss an application for judicial review in a migration case for a failure to disclose a reasonably arguable ground of review without affording a self-represented non-citizen the opportunity to explain orally the substance of his or her complaint. Again, there is nothing in the materials before this Court to suggest that the primary judge took any steps to address the evident disadvantage of the applicant on the application before her.

44    In short, it is reasonably arguable that the procedure the primary judge adopted for rehearing the Minister’s application for summary judgment deprived the applicant of a fair hearing.

Is it arguable that the outcome could have been different?

45    As the primary judge observed, because the applicant was invited to appear before the Tribunal but failed to appear on the day or time and place at which she was scheduled to appear, the Tribunal’s discretion to dismiss the application without any further consideration of the application or information before the Tribunal was enlivened under s 426A(1) and s 426A(1A)(b) of the Migration Act. None of the grounds of review took issue with the existence of the pre-conditions to the exercise of that discretion. Rather, as the primary judge observed, the essence of the grounds of review was a complaint that the Tribunal had exercised its discretion to dismiss. No asserted error in the Tribunal’s exercise of its discretionary power is articulated in the grounds of review and nothing the applicant submitted orally on the application before me provided any further explanation or particulars from which I could discern any complaint that could be characterised as an error of a jurisdictional nature.

46    Like any statutory discretionary power, the power given by s 426A is subject to a presumption of the law that the legislature intends the power to be exercised reasonably: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [4] (Kiefel CJ), [53] (Gageler J), [89] (Nettle and Gordon JJ), [131]-[135] (Edelman J). A decision made in the exercise of statutory power is legally unreasonable when it lacks an evident and intelligible justification. That may be so where the decision is one which no reasonable person could have arrived at on the information before the decision-maker: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [25]-[26] (French CJ), [68], [76] (Hayne, Kiefel and Bell JJ), [91] (Gageler J).

47    Giving a broad and beneficial construction to the applicant’s grounds of review, these may be taken to be an assertion that the Tribunal’s decision to exercise its discretion to dismiss the application was legally unreasonable. However, given there is no challenge to the pre-conditions to exercise of the power and that the applicant had an opportunity to apply to the Tribunal for reinstatement after she received notice of the non-appearance decision, it is not reasonably arguable that it was a decision which no reasonable decision-maker could have made in the circumstances. Further, the statement of reasons under s 426B and s 430 of the Migration Act provide an intelligible justification for the non-appearance decision and confirmation decision.

48    The Tribunal’s reasons indicate that the applicant was invited under s 425 of the Migration Act to appear before the Tribunal and the invitation included notice that the application may be dismissed for failure to attend. The Tribunal inferred that the invitation to appear was received because it was not returned to sender. Further, the Tribunal sent the applicant SMS reminders before the hearing. The Tribunal said that no satisfactory reason for the non-appearance had been given and ‘[i]n these circumstances’ the Tribunal had decided to dismiss the application.

49    It follows that it is not reasonably arguable that the Tribunal’s decision lacked intelligible justification or was legally unreasonable. In these circumstances, it is not reasonably arguable that if the primary judge had explained the procedure and nature of judicial review to the applicant and provided her with an opportunity to make oral submissions to explain and further particularise her grounds of review that she could have or would have articulated or identified a potential ground of review that the primary judge could have considered had reasonable prospects of success. That is, it is not reasonably arguable that it is possible that further information could have made a difference: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 144-146.

Disposition

50    Given the short delay and arguable failure to accord procedural fairness, I would grant an extension of time to bring that application. However, there is insufficient merit in the proposed grounds of appeal to warrant the grant of leave to appeal even though the refusal of leave will result in substantial injustice to the applicant.

51    The application for leave to appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    10 April 2025