Federal Court of Australia

DSL16 v Minister for Immigration and Citizenship [2026] FCA 677

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant is to pay the costs of the first respondent, as taxed or agreed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.     Introduction

1    The applicant is a citizen of Malaysia who arrived in Australia on 11 October 2009 on a Subclass 976 (Electronic Travel Authority) visa.

2    On 12 November 2015, the applicant applied for an XA-866 Protection visa (protection visa).

3    On 7 March 2016, a delegate of the first respondent (Delegate) refused the applicant’s application for a protection visa (Delegate’s Decision).

4    On 17 March 2016, the applicant applied to the second respondent (Tribunal) for a review of the Delegate’s Decision.

5    On 25 November 2016, the Tribunal affirmed the decision of the Delegate not to grant the applicant a protection visa (First Tribunal Decision).

6    On 6 December 2016, the applicant filed an application for judicial review to the Federal Circuit Court of Australia (FCCA) (now the Federal Circuit and Family Court of Australia (Division 2) (FCFCA)). That application was dismissed on 12 November 2019: DSL16 v Minister for Immigration [2019] FCCA 3207 (Judge Nicholls) (First FCC Decision).

7    On 11 August 2020, the applicant’s appeal from the First FCC Decision was dismissed: DSL16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1141 (Lee J) (First FCA Decision).

8    On 2 September 2021, the applicant’s application to the High Court for an extension of time to file a special leave application to appeal the First FCA Decision was dismissed: DSL16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCASL 162 (Gordon and Steward JJ).

9    On 30 May 2023, the applicant applied again to the Tribunal for a review of the Delegate’s Decision. Although the application referred to a decision made on 10 May 2023, he cited the Departmental file number “CLF2015/59818”, being the same file number relating to the Delegate’s Decision that had been made on 7 March 2016.

10    On 13 July 2023, the Tribunal invited the applicant to comment on the validity of the application, noting the Tribunal had previously made a decision on 25 November 2016 in relation to the Delegate’s Decision and as such the decision was no longer a reviewable decision.

11    On 8 August 2023, the Tribunal found it did not have jurisdiction in relation to the Delegate’s Decision (Second Tribunal Decision).

12    On 18 August 2023, the applicant sought judicial review of the Second Tribunal Decision in the FCFCA (Second Judicial Review Application).

13    On 31 July 2024, a Judicial Registrar of the FCFCA summarily dismissed the application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules) (Registrar’s Decision).

14    On 27 August 2024, the applicant sought a review of the Registrar’s Decision out of time.

15    On 24 September 2024, the primary judge dismissed the application (PJ). Her Honour summarised the applicant’s protracted procedural history and found the Tribunal had correctly found it lacked jurisdiction in the matter. Her Honour accordingly found it was not in the interests of justice to extend time for the bringing of the review application under r 21.02(2)(a) of the FCFCOA Rules.

16    On 1 October 2024, the applicant applied for leave to appeal from the whole of the judgment of the primary judge.

17    On 29 October 2024, the Tribunal filed a submitting notice, save as to costs.

18    For the reasons that follow, I have concluded that the application for leave to appeal the decision of the primary judge is to be dismissed, and the applicant must pay the Minister’s costs.

B.     The Second Tribunal Decision

19    In concluding in the Second Tribunal Decision that it did not have jurisdiction to conduct a further review of the Delegate’s Decision the Tribunal reasoned:

3.    On 12 November 2015 the applicant lodged a valid application for a protection visa. He had previously lodged a protection visa application that was deemed invalid. On 7 March 2016 the delegate refused to grant the applicant the protection visa.

4.    On 17 March 2016 the applicant applied to the Tribunal for review of the decision. On 21 November 2016 the applicant appeared at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. On 25 November 2016 the Tribunal affirmed the decision to refuse to grant the applicant the protection visa: AAT case 1603668. The applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision. On 12 November 2019 the Federal Circuit Court dismissed the judicial review. The applicant appealed to the Federal Court against the decision of the Federal Circuit Court. On 11 August 2020 the Federal Court dismissed the appeal. The applicant applied to the High Court for special leave to appeal against the decision of the Federal Court. On 2 September 2021 the High Court refused to grant leave.

5.    On 30 May 2023 the applicant again applied to the Tribunal for review of the decision. It is this review that is the subject of this decision record…

6.    For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

7.    An application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.

8.    As the delegate’s decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision…

C.     The proceedings before the Federal Circuit AND FAMILY Court OF AUSTRALIA

20    The Minister sought summary dismissal of the Second Judicial Review Application pursuant to r 13.13 of the FCFCOA Rules on the basis that the application had no reasonable prospects of success.

21    On 31 July 2024, orders were made by a Registrar summarily dismissing the Second Judicial Review Application, with costs.

22    The applicant applied for review of the Registrar’s decision on 27 August 2024.

23    By consent, the application for the review of the Registrar’s Decision was determined on the papers. The applicant also informed the Court by email that he did not seek an opportunity to provide written submissions to the Court and would prefer to have the matter considered on the material already possessed by the Court.

24    Rule 21.02(1) of the FCFCOA Rules required that the application seeking review of the Registrar’s decision be made within 7 days. The review application, however, was made on 27 August 2024, being 27 days after the Registrar’s decision on 31 July 2024.

25    The applicant stated in an affidavit that the delay occurred because he “couldn’t afford [a] lawyer to give [him] legal advice” and he was “having troubles [filling in] the form requested so it takes so much time”. The Minister opposed the extension of time.

26    The primary judge observed that while the delay in making the review was not inordinate, it was not insignificant. The primary judge accepted the Minister’s submission that a lack of legal advice is not, of itself, a sufficient excuse for not making an application within time, citing Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [35] (Wigney J) and stated that she was not persuaded that difficulties in filling in the form sufficiently accounted for the delay.

27    The primary judge accepted that no specific prejudice has been identified by the Minister but noted the Minister’s submissions that this did not, without more, justify the grant of the extension and that there is public interest in the timely and effective disposal of litigation.

28    Her Honour found that even if the applicant had provided an acceptable explanation for the delay, she would still have been inclined to dismiss the application.

29    The grounds relied upon by the applicant in the Second Judicial Review Application were stated as follows:

1.    The Administrative Appeals Tribunal made a jurisdictional error as it should accept my application.

2.    The Tribunal should consider my situation in new circumstances as things change all the time.

3.    I should be given another chance to assess the risks of me being send back to my own country as I have been living here for over ten years and I am too old to survive in my country.

30    Ground 1 asserted that the Tribunal “made a jurisdictional error”. However, the primary judge observed that no basis for this was stated, other than a general assertion that the Tribunal should have accepted the applicant’s application. Grounds 2 and 3 suggested that the Tribunal should consider the applicant’s situation according to updated circumstances and that the applicant should be given another chance due to his age and time in Australia.

31    The primary judge accepted the Minister’s submission that the underlying application for review of the Registrar’s decision lacked merit. Her Honour stated that this was a consideration that may weigh heavily against granting the extension of time, citing Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 631 at [74] (Judge Ladhams); BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 902 at [4], [27] and [48] (Judge Champion) (from which an application for an extension of time and leave to appeal was dismissed by Burley J in BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307).

32    Moreover, the primary judge accepted the Minister’s submission that the Tribunal correctly found that it lacked jurisdiction in the matter.

33    The primary judge concluded at PJ [30]:

The Tribunal correctly understood the effect of SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164 (SZBWJ) per Scarlett FM, Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 76 FCR 301 (Jayasinghe) per Goldberg J and SZASP v Minister for Immigration and Citizenship [2007] FCA 771 (SZASP) per Moore J. Those cases are authority for the proposition that the Tribunal does not have jurisdiction to review a delegate’s decision twice. In circumstances where the Tribunal has already carried out its statutory duty to review a delegate’s decision, the Tribunal lacks jurisdiction to conduct a further review.

D.     Leave to appeal should not be granted

D.1.     The applicant requires leave to appeal

34    The applicant requires the Court’s leave to appeal from the interlocutory decision of the primary judge refusing to extend the time to apply for review of a Registrar’s decision to summarily dismiss the application for judicial review: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and CIK23 v Minister for Immigration and Citizenship [2025] FCA 896 at [12]-[16] (Bromwich J).

35    Whether leave to appeal should be granted turns on (a) whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration, and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 (Sheppard, Burchett and Heerey JJ).

36    It can readily be accepted that if the decision of the primary judge was wrong the applicant would suffer substantial injustice as he would face imminent removal from Australia given he would have exhausted all avenues to challenge the Delegate’s Decision.

37    I am satisfied, however, for the following reasons that the decision of the primary judge not to extend time for the applicant to file the Second Judicial Review Application is not attended by sufficient doubt that would warrant leave being granted to appeal the decision.

D.2.     Applications for summary judgment

38    Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides:

143    Summary judgment

…

(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…

39    Rule 13.13 of the FCFCOA Rules provided:

Disposal by summary dismissal

The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

(a)    the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

b)    the proceeding or claim for relief is frivolous or vexatious; or

(c)    the proceeding or claim for relief is an abuse of the process of the Court.

40    In considering an application for summary dismissal, the Court is not required to determine whether the Tribunal’s decision is affected by jurisdictional error but rather whether the case raises a real or genuine dispute that might reasonably be resolved in an applicant’s favour, after drawing all reasonable inferences in favour of the applicant: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33] (Judge Given).

D.3.     The proposed grounds of appeal have no merit

41    The grounds of the application and the grounds of the proposed notice of appeal are identical as follows:

1.    The judge in the Federal [Circuit] Court didn’t correct the mistakes made by the Administrative Appeals Tribunal.

2.    The Administrative Appeals Tribunal's decision was not properly reviewed by the court and the court failed to perform its judicial function.

42    By the two grounds of this application, the applicant does no more than simply assert that the primary judge did not “correct the mistakes” of the Tribunal, and that the Tribunal’s decision was not “properly reviewed” by the primary judge.

43    I am satisfied that neither of these grounds has any merit.

44    The primary judge’s conclusion the Tribunal correctly found that it did not have jurisdiction was itself plainly correct. In SZASP v Minister for Immigration & Citizenship [2007] FCA 771, Moore J stated at [4]:

It is necessary to first say something about the applicant’s attempt to seek a second review of the delegate’s decision in the Tribunal. The Tribunal’s conclusion that it no longer had jurisdiction to review the delegate’s decision, having already discharged its functions under the Act to review the delegate’s decision, was correct: Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30], Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7], and Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor (1997) 76 FCR 301. The Tribunal was also correct in finding that changed circumstances did not provide any legal basis for undertaking a second review. The avenue provided by the Act to take into account changed circumstances, at least potentially, is the Minister’s power to permit lodgement of a further protection visa application under s 48B of the Act.

45    There is no reason to doubt that the first decision by the Tribunal was valid, having regard to the various unsuccessful applications made by the applicant seeking to challenge that decision through the courts. The Tribunal was therefore correct to find that it lacked jurisdiction to review the Delegate’s decision a second time. No arguable basis has been identified for finding otherwise.

46    The primary judge correctly found that (a) the Second Judicial Review Application made by the applicant was seeking a review of the Delegate’s Decision that had been the subject of the First Judicial Review Application, and (b) it lacked jurisdiction in the matter, noting there was “no reason to doubt that the first decision by the Tribunal was valid”, not least because of the various unsuccessful applications made by the applicant to the Courts challenging the First Tribunal Decision.

47    In the applicant’s submissions dated 24 February 2026, he claims that he “came from a dangerous place to a safe and free place where I can live without danger…I kept telling the truth about my physical injuries, but they refused to accept it”. These submissions are addressed at the merits of the First Tribunal Decision and are not relevant to any jurisdictional error challenge to the Second Tribunal Decision. The applicant’s request for the Court to show him “mercy, equality and happiness” is understandable but is similarly misconceived.

E.     Disposition

48    The application for leave to appeal is to be dismissed and the applicant is to pay the Minister’s costs.

Associate:

Dated:    1 June 2026