Federal Court of Australia

CDD24 v Minister for Immigration and Citizenship [2026] FCA 1070

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 19 June 2025 be dismissed.

2.    The applicant pay the first respondent’s costs fixed in the amount of $4,800.

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

REASONS FOR JUDGMENT

YOUNAN J:

INTRODUCTION

1    The applicant is a citizen of Malaysia, and applied for a Subclass 866 Protection (Class XA) visa on 10 July 2018, which was refused by a delegate of the first respondent (the Minister) on 7 September 2018.

2    On 13 March 2024, the Tribunal dismissed an application for review of the delegate’s decision under s 426A(1A)(b) of the Migration Act 1958 (Cth) (as the Act appeared at the relevant time), as the applicant did not appear to give evidence and present arguments at the scheduled hearing.

3    On 28 March 2024, the Tribunal confirmed its decision under s 426A(1E) of the Migration Act as the applicant did not apply for reinstatement of his application within the prescribed 14-day period. This is in circumstances where the applicant was notified of the dismissal decision, and advised that reinstatement of the application could be sought within 14 days of receiving the dismissal decision, and that failure to apply for reinstatement within the 14-day period would result in confirmation of the dismissal decision.

4    The applicant sought judicial review of the Tribunal’s (confirmation) decision in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA). On 14 May 2025, Registrar Rohan summarily dismissed the application for review of that decision. On 11 June 2025, in a de novo review, the primary judge dismissed the applicant’s application for review of the Registrar’s decision, with costs fixed in the sum of $1,300: CDD24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 893 (Primary Judgment or PJ).

5    On 19 June 2025, the applicant filed an application for leave to appeal from the judgment of the primary judge pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

Appearance

6    At the hearing of the leave application on 28 July 2026, the applicant appeared in person with the assistance of a Mandarin interpreter. The applicant did not file any outline of written submissions in support of the grounds of application.

FACTUAL BACKGROUND

7    The factual background to this matter is outlined at paragraphs [4]–[23] of the Primary Judgment. It is not necessary to repeat here.

LEAVE TO APPEAL

8    Section 24(1A) of the FCA Act provides that an appeal shall not be brought (relevantly) from an interlocutory judgment of the FCFCOA unless the Court or a Judge gives leave to appeal. It was not in contest that an order summarily dismissing a proceeding is interlocutory in nature: CMW22 v Administrative Appeals Tribunal [2023] FCA 262 at [31] per Perry J, citing Re Page; Hill v Fladgate [1910] 1 Ch 489; Fuller v Toms [2012] FCAFC 155 at [14]; and BVG17 v BVH17 (2019) 268 FCR 448 at [29] per Collier and Rangiah JJ, [132] per Perry J.

9    The power of a Registrar of the FCFCOA to dismiss an application pursuant to r 13.13(a) of the former Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) was delegated under r 21.01 of those rules (at item 58 of Table 21.1).

10    Review of the exercise of judicial power pursuant to a delegation is to be differentiated from statutory rights of appeal or a further stage in a tiered process: Bechara v Bates (2021) 286 FCR 166 at [2]. It is an attribute of the nature of the authority that attaches to the delegation.

11    Accordingly, the Primary Judgment is interlocutory in nature, and an appeal from that judgment requires leave to appeal pursuant to s 24(1A) of the FCA Act.

12    As stated by Goodman J in Lin v Minister for Immigration and Citizenship [2026] FCA 372 at [22], the principles relevant to an application for leave to appeal are well-established:

The applicant must demonstrate that the decision in respect of which leave to appeal is sought is attended with sufficient doubt to warrant reconsideration and that if leave were to be refused in circumstances where the decision is wrong there would be substantial injustice to the applicants: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 (Sheppard, Burchett and Heerey JJ).

13    These limbs are cumulative, such that the test is not satisfied unless each limb is made out: Rawson Finances Pty Ltd v Commissioner of Taxation [2010] FCAFC 139 at [5].

14    In the present case, the applicant fails at the first limb, in that he fails to demonstrate that the primary judgment is attended with sufficient doubt to warrant reconsideration.

GROUNDS OF APPLICATION

15    The leave application contains the following grounds of application:

1.    The primary judge erred in the judgment by failing to consider that the Tribunal should consider the applicant’s merit application on the existing evidence, even if the department has made its decision based on the same evidence.

2.    The primary judge erred in the judgment without considering the applicant’s argument that the nominated email was his former agent, not his own. The applicant didn’t receive the pre-hearing information dated 13 January 2024, notification of hearing invitation dated 20 February 2024, notification of reinstatement dated 13 March 2024 and notification to dismiss application dated 28 March 2024, nor did he return respond to pro-hearing information and Hearing Invitation.

3.    The primary judge erred in the judgment by failing to consider that the Tribunal didn’t to notify the applicant in respect of hearing date by text message as it always has done to other applicants. The text message of hearing reminder sent to the applicant directly would make the applicant becoming aware of the hearing as scheduled so as for him to attend the hearing.

16    At the hearing of the leave application, the applicant was invited to respond to the Minister’s oral submissions and make any submissions in support of the grounds of application. The applicant indicated that he did not consider that there was any error in the Primary Judgment, from which he sought leave to appeal, but that he could not return to his country. This is consistent with the concession that the applicant made before the primary judge that there was no jurisdictional error in the Tribunal’s decision: PJ [32].

17    The applicant also indicated that his “submissions” had been prepared by a lawyer, but that he was not able to secure the assistance of legal representation at the hearing. The applicant did not seek an adjournment for that purpose. In any event, I considered that the applicant had sufficient time to seek such assistance prior to the hearing, or at least notify the Court of any such difficulties, which were not communicated to the Court before the hearing.

18    Notwithstanding the applicant’s acknowledgement that he could not identify error in the Primary Judgment, I turn to consider the grounds of the application.

Ground 1 – merits of the application

19    In essence, this ground asserts error on the part of the primary judge for failing to consider that the Tribunal erred by virtue of not having considered the merits of the applicant’s application (and instead dismissing the application for want of appearance). I consider that this is a fair reading of the ground, which is not particularised or otherwise explained by the applicant in written or oral submissions.

20    The Minister submits that there was no error in the primary judge’s decision that it was open to the Tribunal to dismiss the applicant’s application following his non-attendance at the hearing on 12 March 2024. This is because:

(1)    the Tribunal validly invited the applicant to the hearing on 20 February 2024, pursuant to s 425A of the Migration Act;

(2)    the applicant was deemed to have received the invitation on 20 February 2024, as sent by email to his nominated email address, per s 441C(5) of the Migration Act;

(3)    the Tribunal’s discretion under s 426A(1) of the Migration Act was therefore enlivened, such that it could decide whether to make a decision on the review or dismiss the application without further consideration of it and the information before it (subject to the requirement that the discretion is exercised reasonably);

(4)    the Tribunal’s decision to dismiss the application had an evident and intelligible justification; and

(5)    when the applicant failed to seek reinstatement within 14 days of being notified of the dismissal decision, the Tribunal was bound to confirm that decision per s 426A(1E) of the Migration Act.

21    On the basis outlined by the Minister (immediately above), it cannot be said that the exercise of the Tribunal’s discretion to dismiss the application for want of appearance, after a history of failing to respond to, or “limited” engagement with, the Tribunal in relation to the hearing, was legally unreasonable. Nor does the applicant take issue with the mandatory exercise of the Tribunal’s power under s 426A(1E) of the Migration Act to confirm that decision in the absence of an application for reinstatement, the opportunity for which was notified to the applicant at the time he was notified of the dismissal decision.

22    This ground does not identify any error on the part of the primary judge in dismissing the grounds of review as his Honour did.

Ground 2 – receipt of pre-hearing information

23    By this ground, the applicant claims that the primary judge did not consider the applicant’s argument “that the nominated email address was his former agent, not his own”, and that the “applicant didn’t receive the pre-hearing information”.

24    This argument was not raised before the primary judge. A party is normally bound by the conduct of its case at first instance: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ. Leave to amend may be granted where it is expedient in the interests of justice to do so, having regard to matters such as whether there is an explanation for not raising the point at first instance, whether there is prejudice to any party, and whether the new point has any merit: DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 301 FCR 344 at [23]–[24]; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]–[48]. This assessment of merits may be undertaken at an impressionistic level: NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [31].

25    The Minister submits that the proposed ground lacks merit, and that there is no adequate explanation provided for why it was not raised below. As a result, it is not in the interests of justice to grant leave to amend the applicant’s case at first instance.

26    The Minister also addresses a purported allegation of third-party fraud. However, in my view, no such allegation arises from the second ground, and so it is unnecessary to determine. There is no suggestion that the provision of the nominated email was fraudulent, or that the failure to receive the pre-hearing information was orchestrated.

27    This ground fails at the first hurdle. The applicant did not put this argument (or supporting evidence) before the primary judge, notwithstanding being provided with the opportunity to expand upon and further particularise the grounds of review: PJ [31]. In fact, the applicant accepted before the primary judge that the Tribunal’s decision was not affected by jurisdictional error: PJ [32]. No explanation was provided for not raising the point at first instance.

28    Even if leave were granted to raise this novel argument on appeal, s 441C(5) of the Migration Act provides that a person is taken to have received, at the end of the day on which the document is transmitted, a document transmitted by email to the last email address provided to the Tribunal by the recipient: see s 441A(5)(d).

29    There was no evidence provided by the applicant to the primary judge that the nominated email was not his own, nor that he did not receive the information outlined in the ground. The applicant provided the same email address in his applications to the Department of Home Affairs, the Tribunal and the FCFCOA. The applicant also corresponded from the same email address in response to the Tribunal on multiple occasions.

30    Section 441C(5) operates as a deeming provision by which the recipient of a document from the Tribunal is “taken to have received” it by operation of law. It does not create a rebuttable presumption of fact: SZUUR v Minister for Immigration and Border Protection (2016) 241 FCR 409 at [43] per Farrell J, discussing s 441C(4), citing Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13]–[14] per Spender, Kiefel and Dowsett JJ.

31    Accordingly, the applicant is deemed to have received the information outlined in the ground, including the invitation to attend the hearing.

32    Moreover, the evidence supports the provision of the “pre-hearing information” outlined in the ground to the same email address.

33    The second ground of the application is without merit.

Ground 3 – notification by text message

34    The Minister submits that the Tribunal complied with its codified procedural fairness obligations in Pt 7, Div 4 of the Migration Act, in particular to invite the applicant to attend the hearing and to notify him of the dismissal decision.

35    Like the second ground, this ground fails on the basis that the applicant did not raise the argument before the primary judge, despite being provided with an opportunity to do so.

36    In any event, as the applicant was notified of the dismissal decision and his right to seek re-instatement in a manner compliant with the requirements of s 426B of the Migration Act, there was no obligation on the Tribunal to consider other ways in which the applicant could be notified: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [39] per Spender, French and Cowdroy JJ.

37    Furthermore, there is evidence that the applicant did not provide a mobile phone number in his application to the Tribunal. Additionally, as noted above at [29], the applicant corresponded with the Tribunal via the email address provided.

38    The third ground of the application is also without merit.

CONCLUSION

39    The grounds of the application do not demonstrate any error in the primary decision. As such, the application for leave to appeal the primary decision should be dismissed as the decision is not attended with sufficient doubt to warrant reconsideration. Given that conclusion, it is not necessary to then consider whether there would be substantial injustice to the applicant if leave were to be refused in circumstances where the decision is wrong.

Costs

40    At the hearing, the Minister sought an order for lump sum costs fixed in the amount of $4,800.

41    In light of the absence of communication from the applicant in the lead up to the hearing of the leave application, and with a view to the efficient disposition of this matter, I consider it appropriate to award lump sum costs pursuant to s 43(3)(d) of the FCA Act and r 40.02(b) of the Federal Court Rules 2011 (Cth) (FCR).

42    After the hearing, the Minister provided an affidavit of Madhav Fisher affirmed on 30 July 2026, which outlined the solicitor-client costs incurred by the Minister in this matter. That evidence revealed that the lump sum amount sought was approximately 65% of the Minister’s costs, and, in the deponent’s view, on the basis of his experience, a conservative estimate of the fees that would be recoverable on taxation.

43    While the deponent’s experience was not outlined in the affidavit so as to permit an assessment of the opinion expressed, I accept that the amount sought is a reasonable amount given the nature and procedural history of this matter, and modest in light of the costs actually incurred, no doubt exacerbated by the lack of particularisation of the grounds of the application, which required a conservative approach to the preparation of written and oral submissions.

44    I consider it appropriate to award costs fixed in the sum of $4,800, as requested by the Minister. I note further that the amount sought is below the prescribed threshold (item 15.2 of Schedule 3 to the FCR), and that the applicant did not make any submissions in opposition to the Minister’s request, despite being provided with an opportunity to do so.

Associate:

Dated:    6 August 2026