Federal Court of Australia

KTW25 v Commonwealth of Australia (Summary Judgment) [2026] FCA 114

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is amended to “Commonwealth of Australia”.

2.    The whole proceeding is dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

3.    The applicant pay the first respondent’s costs.

4.    The applicant pay the costs of the Minister for Immigration and Citizenship.

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

REASONS FOR JUDGMENT

DOWLING J

Introduction and Summary

1    In March 2024 the applicant made an application under the Commonwealth Scheme for Compensation for Detriment caused by Defective Administration (the CDDA Scheme). That application concerned an alleged disclosure made by the applicant under the Public Interest Disclosure Act 2013 (Cth) (PID Act). In April 2024 an officer authorised to make decisions under the CDDA Scheme determined that the applicant was not entitled to compensation under the scheme. The applicant sought review of that decision. In June 2024 a review determined that the decision to refuse compensation was correct.

2    The applicant, by his statement of claim and originating application both filed 6 March 2025, now seeks orders:

(1)    directing the first respondent, the Department of Defence, “to appoint a new delegate to review” the applicant’s application under the CDDA Scheme;

(2)    directing the first respondent to “treat the applicant as a Public Official within the meaning of the [PID Act]” for the purposes of the review of the applicant’s application under the CDDA Scheme; and

(3)    directing the second respondent, the “Chief Scientist of Department of Home Affairs” to “restore the applicant’s Citizenship Status on the grounds that the Department of Home Affairs provided incorrect advice after experiencing computer malfunction in relation to” the applicant’s application under the CDDA Scheme.

3    By its interlocutory application dated 14 May 2025, the first respondent seeks orders amending the name of the first respondent, striking out a number of paragraphs of the statement of claim, and summarily dismissing the proceeding as against the first respondent. It says the statement of claim fails to disclose a reasonable cause of action and that the applicant has no reasonable prospect of successfully prosecuting his claim for the relief sought. The first respondent does not address the merits of the applicant’s application under the CDDA Scheme. Rather, it says, even if there was error in that process there is no legal basis for the relief sought by the applicant.

4    By its interlocutory application dated 8 April 2025, the second respondent seeks orders dispensing with the requirement to file a defence, removing the second respondent as a party, striking out a number of paragraphs of the statement of claim, and summarily dismissing the proceeding as against the second respondent. It says the entity named as the second respondent does not exist and, in any event, the applicant has no reasonable prospect of obtaining the relief sought against the second respondent. It says the applicant has no prospect of obtaining orders restoring his Australian citizenship where he has never held Australian citizenship.

5    These reasons address the respondents’ interlocutory applications. For the reasons expressed, I have determined that the whole proceeding should be dismissed with costs.

Detailed facts and background circumstances

6    The applicant is a citizen of the United States of America. He first arrived in Australia on 19 October 2015. He arrived on a Work and Holiday visa (Subclass 462). He departed and returned to Australia in 2016 on the same Work and Holiday visa. Since that return the applicant has remained in Australia and held a Student visa (Subclass 500) and a number of bridging visas. He is presently an unlawful non-citizen and held in immigration detention.

7    On 16 March 2024, the applicant made an application under the CDDA Scheme. That application alleges that on approximately 4 May 2021 the applicant contacted the Department of Defence seeking to make a disclosure under the PID Act. It is that alleged disclosure that is said to have resulted in defective administration by the Department of Defence. On 10 April 2024 an officer at the Department of Defence who was authorised to make decisions under the CDDA Scheme determined that the applicant was not entitled to compensation under the scheme. The officer considered that none of the information provided indicated that an act or omission made by the Department of Defence had resulted in “defective administration” under the CDDA Scheme, and that even if that conclusion was wrong, the alleged “defective administration” did not directly cause the detriment claimed. The applicant sought review of that decision on 8 May 2024. On 12 June 2024 a review determined that the decision to refuse compensation was correct.

8    As explained, on 6 March 2025, the applicant commenced proceedings by way of originating application and statement of claim. The originating application seeks:

Injunctions pursuant to section 39B of the Judiciary Act … :

2a. Directing the First Respondent to appoint a new delegate to review the CDDA application.

2b. Directing the First Respondent to treat the applicant as a Public Official within the meaning of the Public Interest Disclosure Act 2013 for the purposes of the CDDA review (reassessment).

2c. Directing the Second Respondent to restore the applicants Citizenship Status on the grounds that the Department of Home Affairs provided incorrect advice after experiencing computer malfunction in relation to the contents of the CDDA claim with Defence.

9    The first respondent filed a defence on 7 April 2025. On 8 April 2025, the second respondent filed an interlocutory application seeking:

1. Compliance with 16.32 of the Federal Court Rules 2011 (Cth) (Rules) [requiring the filing of a defence], be dispensed with in relation to the second respondent.

2. Pursuant to r 9.08 of the Rules, the second respondent be removed as a party to the proceeding.

3. In the alternative:

a. pursuant to r 26.01(1)(a) of the Rules, paragraph 2(c) of the Originating Application be summarily dismissed on the ground that the applicant has no reasonable prospect of successfully prosecuting that part of the proceeding; and

b. pursuant to r 16.21(1)(e) of the Rules, paragraphs 7 to 9 of the Statement of Claim be struck out on the ground that they fail to disclose a reasonable cause of action.

4. Costs.

10    The application was supported by an affidavit of Ms Freda Taah (the Taah affidavit) sworn on 8 April 2025.

11    On 14 May 2025, the first respondent filed an interlocutory application seeking:

1. Pursuant to r 1.32 of the Federal Court Rules 2011 (Cth) (Rules), the name of the First Respondent be changed to “Commonwealth of Australia”.

2. Pursuant to r 16.21(1)(c), (d) and (e) of the Rules, paragraphs 3, 4, 5, 6, 10 and 11 of the Statement of Claim dated 21 February 2025 be struck out.

3. Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), alternatively r 26.01(1)(a) and (c) of the Rules, the part of the proceeding by which the Applicant claims relief against the First Respondent be summarily dismissed.

12    That application was supported by an affidavit affirmed by Mr Rodger Prince on 14 May 2025 (the Prince affidavit).

13    The applicant has filed the following materials. Much of that material was not filed consistent with any orders of the Court, however, no objection was taken to the material:

(1)    an affidavit of the applicant affirmed on 7 March 2025;

(2)    an affidavit of service affirmed on 21 March 2025;

(3)    an affidavit of the applicant affirmed on 24 March 2025;

(4)    a document titled “reply to affidavit of the Second Respondent” dated 27 July 2025;

(5)    an affidavit of the applicant affirmed on 13 August 2025;

(6)    an affidavit of the applicant affirmed on 5 November 2025;

(7)    submissions dated 22 November 2025; and

(8)    further submissions dated 22 November 2025.

14    I have taken account of that material and where relevant I have addressed it below.

First respondent’s interlocutory application

15    The applicant’s claim for relief outlined in his originating application (see [8] above) seeks injunctions directing the respondents to do certain things. I have approached that relief as an application for a mandatory injunction or alternatively an application in the nature of mandamus.

16    The first respondent put its case for summary judgment in the form of two propositions. First, to obtain a mandatory injunction or an order in the nature of mandamus directing the first respondent to do something, the applicant needs to show that there is a legal duty for the first respondent to do that thing. Second, there is no duty for the first respondent, or any officer of the Commonwealth, to review the applicant’s CDDA application or to appoint a delegate to review that application. The first respondent submits that if both of those propositions are accepted, then it follows that there is no reasonable prospect of the applicant obtaining the first order he seeks. The first respondent says further that because the second order is contingent on the first being granted, there is no reasonable prospect of the applicant obtaining the second order he seeks. Before turning to those two propositions, I briefly address the relevant principles for summary judgment and a preliminary issue concerning the Court’s jurisdiction to judicially review non-statutory executive action.

Relevant principles for summary judgment

17    Section 31A(2) of the Federal Court of Australia Act 1976 (Cth) relevantly provides that the Court may give judgment against a party in relation to the whole or any part of a proceeding if the Court is satisfied that party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

18    Rule 26.01(1) of the Federal Court Rules 2011 (Cth) relevantly provides that a party may apply to the Court for an order that judgment be given against another party because: (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.

19    The first respondent relies upon Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [60] (Hayne, Crennan, Kiefel and Bell JJ) for the proposition that the power to dismiss an action summarily is not to be exercised lightly. The first respondent also relies upon Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at [95] (Lord Hope of Craighead), cited at [21] in Spencer by French CJ and Gummow J, for the proposition that:

it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of the court as soon as possible.

20    The second respondent relies upon the decision of McKerracher J in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 at [3], where his Honour addressed s 31A of the Federal Court Act, including where he said:

(1)    if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 at [127] (Gordon J);

(2)    it is clear that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment, including summary dismissal, below that fixed by previous authorities: see Spencer at [53] and [56] (Hayne, Crennan, Kiefel and Bell JJ); Jefferson Ford at [127] (Gordon J);

(3)    the Court does not, in such an application, conduct a “mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial”. Rather, it “requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial”: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [46] (Reeves J).

21    There was no challenge by the applicant to the applicability of those principles at [19] and [20]. The principle at [20(1)] set out in Buurabalayji (as repeated by McKerracher J in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [29(f)]) and Jefferson Ford was repeated with approval by the Full Court of this Court in Scott v Steritech Pty Ltd [2025] FCAFC 110 at [38]-[42] (Banks-Smith, Meagher and Kennett JJ).

22    Further, relevant principles concerning summary judgment have been recently and helpfully summarised in KTW25 v Minister for Immigration and Citizenship [2025] FCA 1391 at [26]-[30] (Hill J). I adopt that summary:

26 Summary judgment – general principles

…

27 The principles governing s 31A were summarised as follows in Sayed v Salvation Army Housing [2023] FCA 526 at [45] (O’Callaghan J) (which was adopted in Scordo v Commonwealth Bank of Australia [2024] FCA 359 at [45] (Button J)):

•    The essential requirement for an order under s 31A or r 26.01 is that the Court be satisfied that the applicant has no reasonable prospect of successfully prosecuting the claim. This is a lower standard than the previous “hopeless” or “bound to fail” standard.

•    Summary judgment is available when well-established propositions of law deny the prospect of success.

•    On the other hand, summary dismissal is a serious step taken only with great care and if the Court is confident that there is no reasonable prospect of success.

28 The exercise of power under s 31A(2) should be used with caution, particularly where complex questions of fact or law are involved: Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 at [48] (the Court). At the same time, if the version of the facts asserted by the party resisting the motion is either so improbable, or fanciful, or trifling, or implausible, or tenuous then summary judgment must be granted: Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171; (2018) 273 IR 439 at [20] (Gilmour J); B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd [2019] FCA 64; (2019) 134 ACSR 404 at [17] (Derrington J); Australian Communications and Media Authority v V Marketing Pty Ltd (in liq) [2020] FCA 1326 at [49] (Collier J); PlayUp Limited v Mintas [2022] FCA 892 at [65] (Markovic J).

29 Scordo establishes the following propositions about the other tests for summary dismissal in r 26.01(1)(b) and (c) of the Rules:

•    A proceeding is “frivolous” if the cause of action lacks substance or is groundless or fanciful, or where a party is trifling with the court or wasting its time. A proceeding is “vexatious” if it is without foundation, cannot succeed or is brought for an ulterior and collateral purpose: Scordo at [48], and the cases cited.

•    A proceeding will disclose “no reasonable cause of action” if it is so obviously untenable that it cannot succeed: Scordo at [49]; or if the originating application simply makes “bare demands” without articulating the legal bases for the claims: Sayed at [46](a).

30 In Scordo, Button J made two general points worth emphasising. First, the Court’s power to give judgment under s 31A does not involve “mere pleading points” but is concerned with substance: Scordo at [42]. Second, the Court’s resources are finite, and s 31A confers power on the Court to avoid the waste of those resources. While granting summary judgment is a serious matter as it brings to an end a litigant’s ability to pursue claims to trial, the Court should not shy away from exercising its powers in an appropriate case: Scordo at [53].

Preliminary issue: the CDDA Scheme and the Court’s jurisdiction to judicially review non-statutory executive action

23    The CDDA Scheme is a discretionary mechanism available to non-corporate Commonwealth entities. It allows an entity to pay compensation when a person or organisation has suffered detriment as a result of the entity's defective administration, when there is no legal requirement to make a payment.

24    Annexed to the Prince affidavit is a Resource Management Guide titled Scheme for Compensation for Detriment caused by Defective Administration (RMG 409). RMG 409 was issued by the Department of Finance and describes itself as a guide relevant to staff in non-corporate Commonwealth entities who deal with requests for financial assistance under the CDDA Scheme. It was last updated on 17 November 2022. Under a heading titled “What does the CDDA Scheme do?”, RMG 409 provides:

17. The CDDA Scheme provides that if a minister or an official authorised by the minister forms an opinion that an official of the entity, acting, or purporting to act, in the course of duty, has directly caused a claimant to suffer detriment, or, conversely, prevented the claimant from avoiding detriment, due to:

•    a specific and unreasonable lapse in complying with existing administrative procedures that would normally have applied to the claimant's circumstances

•    an unreasonable failure to institute appropriate administrative procedures to cover a claimant's circumstances

•    giving advice to (or for) a claimant that was, in all circumstances, incorrect or ambiguous

•    an unreasonable failure to give to (or for) a claimant, the proper advice that was within the official's power and knowledge to give (or was reasonably capable of being obtained by the official to give) the minister or the authorised official may authorise a payment to the claimant.

18. The CDDA Scheme is permissive, in that it does not oblige the decision-maker to approve a payment in any particular case. However, the decision to approve or refuse a payment must be publicly defensible, having regard to all the circumstances of the matter.

25    RMG 409 also provides that the scheme operates on the basis of authority provided to individual portfolio ministers under the executive power of sections 61 and 64 of the Constitution. The scheme was described by the first respondent as a scheme which is not directly regulated by a statute. I understood that to be a reference to the absence of a statute that expressly confers or conditions a power to decide whether or not compensation should be awarded: see Singh v Minister for Government Services [2024] FCAFC 159 (Singh Full Court) per Charlesworth J at [28], cf Logan J at [6]-[7].

26    In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; 288 FCR 23, the Full Court found that non-statutorily based administrative actions are amenable to judicial review for legal unreasonableness: at [3] (Kenny J), [49]-[50], [54]-[55] (Besanko J), [96]-[97], [112]-[113] (Griffiths J), [116]-[118] (Mortimer J), [302], [327], [363] (Charlesworth J).

27    In Barnett v Minister for Health and Aged Care [2023] FCA 1139 at [28]-[29], after referring to the Full Court’s decision in Davis, Snaden J proceeded on the basis that the Court had jurisdiction to grant relief under s 39B of the Judiciary Act 1903 (Cth) in an application for judicial review of a decision made under the CDDA Scheme.

28    In Singh v Minister for Government Services [2024] FCA 368, Neskovcin J at [37]-[42] agreed with Snaden J’s approach in Barnett, and proceeded on the basis that the Court has jurisdiction to grant relief under s 39B of the Judiciary Act in an application for judicial review of a decision made under the CDDA Scheme were the grounds for such relief to be established. The decision of Neskovcin J was the subject of appeal before the Full Court. The appeal was dismissed. The Full Court did not consider it necessary to determine whether the scheme was amenable to judicial review or the correctness of Davis: Singh Full Court at [5] (Logan J, with whom Charlesworth and Dowling JJ agreed).

29    At the interlocutory hearing in the present matter, counsel for the first respondent submitted that to the extent the Full Court in Davis held the exercise of non-statutory executive power at issue in that case was amenable to judicial review on the ground of legal unreasonableness, it was wrongly decided. However, counsel submitted that I am bound to proceed on the basis as set out by the Full Court in Davis. I accept that I am bound by the Full Court decision in Davis. I have determined the respondents’ interlocutory applications on the basis that the Court has jurisdiction to grant relief under s 39B of the Judiciary Act in an application for judicial review of a decision made under the CDDA Scheme.

Does mandamus or a mandatory injunction requiring something to be done require a legal duty to do that thing?

30    Returning to the first respondent’s two propositions supporting its application for summary judgment. Its first proposition is that to obtain a mandatory injunction, or an order in the nature of mandamus, directing the first respondent to do something, the applicant needs to show that there is a legal duty for the first respondent to do that thing.

31    When considering mandamus in the context of ss 46A and 195A of the Migration Act 1958 (Cth), the High Court said in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [99]-[100] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) that because those provisions both state, in terms, that the Minister does not have a duty to consider whether to exercise the power given by the section, mandamus will not issue to compel the Minister to consider or reconsider exercising either power. See also McCabe v Westin [2024] VSC 145 at [100] and [105] (Harris J).

32    As for mandatory injunctions, in Plaintiff M168/10 v Commonwealth [2011] HCA 25; 85 ALJR 790, Crennan J at [37] considered that what was said in Plaintiff M61 at [99]-[100] in relation to mandamus similarly means that the Court would lack the power to issue interlocutory mandatory injunctions compelling the Minister to consider exercising certain powers under the Migration Act which the Minister is under no duty to exercise.

33    In BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313, Wigney J said at [179] that it is clear that, “where mandamus does not lie to compel a Minister to exercise a statutory power, such as the power under s 195A of the Migration Act, the Court would not issue a mandatory injunction to the same effect”.

34    The authorities establish that in order to obtain a mandatory injunction, or an order in the nature of mandamus, directing the first respondent or some officer of the Commonwealth to do something, the person to whom the injunction or order is directed must have a legal duty to do that thing.

Is there a duty for the first respondent to review the applicant’s CDDA application or appoint a delegate to review that application?

35    As discussed at [23] above, the CDDA Scheme is a discretionary mechanism available to non-corporate Commonwealth entities that allows an entity to pay compensation when there is no legal requirement to make a payment. The “Introduction” of RMG 409 provides that the entity which is the subject of a claim is the entity responsible for considering and making a decision on that claim. In respect of review of CDDA Scheme decisions, RMG 409 states:

It is open to entities to determine whether to implement formal internal review mechanisms for decisions made under the CDDA Scheme.

Entities may also choose to determine whether reconsideration is warranted on a case by- case basis.

If a claimant provides pertinent new evidence, facts or argument to support their application, reconsideration may be appropriate.

36    These extracts make clear that any review under the scheme is discretionary. It is a matter for the entity the subject of the claim.

37    Consistently, in Smith v Oakenfull [2004] FCA 4; 134 FCR 413, Dowsett J considered whether the CDDA Scheme created any legal rights and obligations. His Honour had regard to the guidelines to the CDDA Scheme, issued as “Attachment B to Finance Circular 2001/01”. Those guidelines were a predecessor document to RMG 409. At [20]-[22], his Honour stated:

20 In my view Attachment B is, in effect, a statement of policy. It is clearly revocable at any time; it is neither compelled nor expressly authorized by statute or regulation. The CDDA scheme is, in effect, a mechanism for dealing with complaints which do not raise any arguable assertion of legal wrongs. It is perhaps not unduly cynical to say that the CDDA scheme is designed to avoid public-relations problems involving public bodies and the political consequences of such problems. In Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 406 – 407, Barwick CJ said:

Statements of policy as a rule do not create legal obligations, though they may understandably excite human expectations as distinct from lawful expectations. … Governments are free to change policies. They are also free not to implement them.

21 Paragraph 9 of Attachment B asserts that:

The CDDA scheme does not obligate the decision-maker to approve a payment in any particular case. However the decision – whether to approve or refuse a payment – must be publicly defensible, having regard to all the circumstances of the case.

22 Various aspects of the Attachment suggest that an applicant for compensation is entitled to procedural rights and a fair assessment of the complaint. However it is revocable at will. Those provisions seem to be merely advice as to how a decision-maker should proceed. The Attachment does not create legal rights and/or obligations. In my view the document cannot be classified as an instrument for the purposes of the ADJR Act.

38    I accept the first respondent’s submission that these remarks are equally applicable to RMG 409 and the CDDA Scheme as it presently operates.

39    Against those matters, the applicant said at the interlocutory hearing that:

(1)    it was incorrect to assert that the Court lacked the power to issue interlocutory mandatory injunctions compelling the first respondent to do the things sought at 2(a) and 2(b) of the originating application;

(2)    it was not “unreasonable to assume that the Court does have the power to cause a department to redo whatever [CDDA] process it may be, considering that the same Court has the power to … cause that department to pay an applicant, if they’re successful, a large amount of money”; and

(3)    a “more reasonable” approach for the first respondent “would have been to justify how the CDDA process was, in fact, logical and reasonable in response to the evidence I presented”.

40    The applicant did not provide any authority or material in support of those submissions.

41    In all of those circumstances set out above, I am satisfied that there is no legal duty for the first respondent or an officer of the Commonwealth to consider an application made under the CDDA Scheme or to appoint a new delegate to review or re-review an application made under that scheme.

Conclusion

42    I am satisfied that first, to obtain a mandatory injunction or an order in the nature of mandamus directing the first respondent to do something, there must be a legal duty for the first respondent to do that thing. Second that there is no duty for the first respondent to review the applicant’s CDDA application or appoint a delegate to review that application.

43    Having reached those conclusions, it follows that the applicant cannot succeed in obtaining the relief sought at 2(a) of his originating application. The applicant cannot succeed in obtaining an order directing the first respondent to “appoint a new delegate to review the CDDA application” in circumstances where there is no duty for the first respondent to appoint or review.

44    The order at 2(b) of the originating application, which seeks the first respondent be directed to treat the applicant as a public official within the meaning of the PID Act for the purposes of the CDDA review, is contingent on the success of the order in 2(a). It assumes an order for a review. Given my conclusions above, I find that the applicant has no prospect of successfully prosecuting his claim for the relief sought at 2(b).

45    Further and in any event, even if it was not dependent on the first order, the question of whether the applicant was a public official within the meaning of s 69 of the PID Act is a question of fact concerning his employment status at the relevant time. The Court does not have the power to direct an administrative decision-maker as to the findings of fact that the decision-maker must make in the course of discharging his or her duties: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow JJ).

46    I therefore find that the part of the proceeding by which the applicant claims relief against the first respondent is summarily dismissed. It is unnecessary for me to deal with the interlocutory order sought for certain paragraphs of the statement of claim to be struck out.

47    In circumstances where the first respondent is a non-corporate Commonwealth entity and has no separate legal personality from the Commonwealth, it is appropriate that I make an order changing the name of the first respondent to the Commonwealth of Australia. The applicant says that the first respondent should remain as the Department of Defence. He says that changing the name to the Commonwealth of Australia can “defer understanding of what the particulars [of his case] are”, in circumstances where he says there have been “cover-up activities” or “record disposal activities” on the part of the first respondent. I am not satisfied that those submissions have a proper basis or provide any basis for not changing the name of the first respondent.

48    Given my findings on the first respondent’s interlocutory application, it is also appropriate that the applicant pay the first respondent’s costs of its interlocutory application.

Second respondent’s interlocutory application

Summary judgment order

49    By its interlocutory application, the second respondent seeks that the claim for relief at 2(c) of the originating application be summarily dismissed on the ground that the applicant has no reasonable prospect of successfully prosecuting that part of the proceeding. By the claim for relief at 2(c), the applicant seeks the restoration of his Australian citizenship.

50    The relevant evidence about the applicant’s citizenship status is as follows. First, the Taah affidavit annexes a citizenship status assessment dated 27 May 2021 conducted by a citizenship officer in the Department of Home Affairs. That assessment found no record of the applicant acquiring Australian citizenship by application and no evidence to suggest that he had acquired Australian citizenship by operation of law.

51    Second, annexed to the Taah affidavit is a letter relied on by the applicant and purporting to grant the applicant a “Bridge of Peace citizenship”, ostensibly through ministerial intervention. That document is labelled “MC20-007933”. Ms Taah deposed that:

I am instructed by the Department [of Home Affairs], and believe, that there is no power to grant a non-citizen ‘Bridge of Peace’ citizenship. I am also instructed, and believe, having regard to page 16 of the applicant’s affidavit filed on 11 March 2025, that the applicant has previously relied on a fraudulent document labelled “MC20-007933” in support of his assertion that the Minister has intervened in his case and has granted him ‘Bridge of Peace Citizenship’.

52    The applicant’s affidavit referred to by Ms Taah in the above passage annexes a decision record from the Department of Home Affairs. That document relevantly provides, in relation to the purported “Bridge of Peace citizenship” and document MC20-007933:

Additionally, [KTW25] also claimed that the Minister has already intervened in his case and granted him Bridge of Peace Citizenship and that he has documentary evidence to substantiate this. [KTW25] claims that as a result of this Citizenship he is being unlawfully detained. When I asked [KTW25] if this claimed Citizenship document was one that he has previously sent to the Department reference number MC20-007933 (see TRIM ADD2020/4451113) he stated yes. It should be noted that this document is recorded in Home Affairs systems as being fraudulently created and does not provide [KTW25] with Australian Citizenship. As [KTW25] does not have any outstanding requests for Ministerial intervention lodged, I am therefore not satisfied that [KTW25] meets the grounds to consider his WE050 application on Ministerial intervention grounds at 050.212(6).

(Emphasis added.)

53    At the interlocutory hearing, the second respondent took the Court to the “Bridge of Peace citizenship” letter. The second respondent directed the Court’s attention to typographic and grammatical errors, and the fact that the letter is signed by “Acting Director” rather than by the name of a particular officer. The second respondent says that there are questions on the face of the document as to its validity, and that when understood against the other evidence, the document should be regarded as fraudulent.

54    It is not necessary for me to determine whether the letter is fraudulent. I am satisfied, on the matters described at [50]-[53], that the evidence demonstrates the applicant is not and has never been an Australian citizen. The claim for restoration of Australian citizenship at 2(c) depends upon that citizenship status having existed at some point. I am therefore satisfied that there is a prima facie case that the applicant has no reasonable prospects of success in obtaining the relief that he seeks: see Buurabalayji and Jefferson Ford at [20(1)] above. Against that the applicant points to the following matters.

55    The applicant submits that he had received a letter from the Australian Taxation Office in respect of an application he had made for an “early release of superannuation funds”, and that a criterion of the release of those funds was that the applicant had to be either a permanent resident or citizen of Australia. I understand from this that the applicant submits I should infer from the existence of that letter that he was a citizen or permanent resident of Australia. The applicant describes the letter as being dated 2020 or 2021. The applicant said at the interlocutory hearing that he was “fairly certain” it was in the material filed in this application, but conceded it may have been filed in another application before the Court. The applicant did not identify where in the filed materials this letter was to be found. The applicant said that if the letter was not before me, then it would shortly be filed after the hearing. The letter has not been filed. The letter is not before the Court. In any event, it is difficult to see how such a letter could satisfy me, when read with the matters above, that the applicant was an Australian citizen.

56    The applicant otherwise submits that the Department of Home Affairs lacked the “credibility to accurately quote any of my historical engagements in this country”. The applicant makes a number of further allegations against the Department of Home Affairs for actions he says the Department has taken against him, and says that:

If the Department is willing to take those steps against myself, then it’s not that unreasonable to think that the Department is going to take the same steps to delete whatever evidence was available that would have showed that there was at least permanent resident status at some point through my interaction with the Department.

So I may not have all the proof to show that “I definitely was a permanent resident, here’s all my tax slips, here’s my passport” – those kind of things. But I definitely have the proof, which is before you, that departmental systems, more broadly, are corrupted against

57    None of these allegations are supported by evidence.

58    The applicant also says that restoring citizenship is synonymous to him with “restore the permanent resident status”. The applicant says that the Department cannot prove that he was not a permanent resident. He further says:

I don’t have certainty of knowledge that at any time point, I was, in fact, a citizen. But based on the information I’ve been given, I knew that at some point I was treated as a permanent resident and I’m on the pathway to citizenship. That was my understanding.

59    There is no evidence on the material before me that the applicant was a permanent resident (or citizen). Elsewhere in the decision record described at [52], the document provides:

During interview [KTW25] stated that he wishes to apply for permanent residence in Australia, and claims that he already is one. I have interrogated Department of Home Affairs (the Department) systems and cannot find any evidence to suggest that [KTW25] is a permanent resident of Australia. In addition, [KTW25] has had a visa refused in Australia and is therefore subject to a s48 bar which prevents him from lodging most substantive visa applications whilst in Australia. [KTW25] did not indicate a specific substantive visa that he wishes to apply for therefore I cannot be satisfied that [KTW25] meets the grounds to consider his WE050 on will apply for a substantive visa grounds at 050.212(3)(b).

(Emphasis added.)

60    Having regard to the applicant’s submissions and the evidence before me, I do not consider that the applicant has pointed to any factual or evidentiary issues that defeat the second respondent’s prima facie case in support of summary judgment: see Buurabalayji, Jefferson Ford and Steritech at [20(1)] above.

Conclusion

61    In all of those circumstances paragraph 2(c) is summarily dismissed on the ground that the applicant has no reasonable prospect of successfully prosecuting that part of the proceeding.

62    It is unnecessary for me to deal with the interlocutory order sought for certain paragraphs of the statement of claim to be struck out. It is also unnecessary for me to determine those parts of the second respondent’s interlocutory application that it be relieved of the obligation to file a defence and that it be removed.

63    It is appropriate that I order the applicant pay the second respondent’s costs. Mr Downie appeared at the interlocutory hearing and made submissions in support of the second respondent’s interlocutory application. Mr Downie announced his appearance on behalf of the “Minister for Immigration and Citizenship”. Part of his submission, supported by the evidence contained in the Taah affidavit, was that the entity named as the second respondent does not exist. The Court has a broad discretion as to costs under s 43 of the Federal Court Act. That provision allows for costs to be ordered in favour of a non-party, although the making of such an order will be treated with “considerable caution”: see O’Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559 at [24] (Nicholson J); Bedi v Edwards [2024] FCA 966 at [35]-[37] (Perry J). In the circumstances of this case, it is appropriate that I award costs in favour of the Minister for Immigration and Citizenship, rather than in favour of the named second respondent that the Minister says does not exist. As explained above I have accepted the Minister’s submission in respect of the second respondent’s interlocutory application; he should be entitled to his costs of that application.

disposition

64    The effect of the conclusions in respect of both interlocutory applications is that the whole of the proceeding is summarily dismissed. I will make orders summarily dismissing the proceeding. As explained, I will otherwise change the name of the first respondent to the Commonwealth of Australia and order that the applicant pay the costs of the first respondent and the Minister.

Associate:

Dated:    18 February 2026