Federal Court of Australia

EMD20 v Minister for Immigration and Citizenship [2026] FCA 1258

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to ‘Minister for Immigration and Citizenship’.

2.    The name of the second respondent be changed to ‘Administrative Review Tribunal’.

3.    The application for an extension of time to appeal from the decision of the Federal Circuit and Family Court of Australia (Division 2) dated 1 May 2025 and filed 13 May 2025 be dismissed pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), by reason of the applicant being absent at the time and date listed for hearing.

4.    The applicant pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    The applicant applied for an extension of time, pursuant to r 36.05 of the Federal Court Rules 2011 (Cth), to appeal from a decision of a judge of Division 2 of the Federal Circuit and Family Court of Australia: EMD20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 8 (primary judgment).

2    The application for an extension of time was listed for hearing before me on 18 August 2026. The applicant was put on notice of the date, time, and location of the hearing by way of email to the parties on 27 May 2026 and 11 August 2026. The Registry also contacted the applicant by phone on three occasions, once on 1 June, and twice on 4 June 2026. During the later phone call on 4 June 2026, the applicant was verbally informed of the listing for hearing with the assistance of a Mandarin interpreter for that phone call.

3    When this appeal was called on for hearing, it was also called outside the courtroom three times. There was no appearance by the applicant. It was then stood down for 15 minutes, but the applicant did not appear in that time. The first respondent, now known as the Minister for Immigration and Citizenship, applied for the appeal to be dismissed pursuant to r 35.33(1)(a)(i) of the Rules, by reason of the applicant being absent at the time and date listed for hearing. I was satisfied that the amended application should be dismissed upon that basis, and that no hearing should take place in the absence of the applicant. I therefore dismissed the application. As such, r 36.75(2) is not engaged and there is no basis for any application to be made under that rule for an order setting aside or varying the order, nor for the further conduct of any hearing.

4    While there has not been any hearing in the absence of the applicant, it is worth shortly saying something about the applicant’s case, and in particular why it could never have succeeded had she attended the hearing.

5    On 27 April 2017, the applicant applied for a Protection (Class XA) (subclass 866) visa. On 9 March 2018, a delegate of the Minister refused to grant that visa, on the basis that the applicant failed to satisfy s 36(2) of the Migration Act 1958 (Cth) and finding that the applicant was not a person in respect of whom Australia has protection obligations.

6    On 2 April 2018, the applicant applied to the (then) Administrative Appeals Tribunal (AAT or Tribunal) for merits review of the delegate’s decision. On 15 May 2020, the applicant submitted a withdrawal form to the AAT which stated that she wanted to withdraw her application for review. The form also contained a declaration as part of the form which included the following:

I understand that upon receiving this advice, you will consider whether the application for review is validly withdrawn. I understand that, once you decide that an application for review is withdrawn, you cannot take any further action in relation to the application for review.

7    On 19 May 2020, a member of the AAT accepted a recommendation that the applicant’s withdrawal be accepted and found that the Tribunal no longer had jurisdiction over the matter.

8    On 21 May 2020, the AAT wrote to the applicant regarding her 15 May 2020 withdrawal form, characterising it (correctly) as informing the Tribunal that she wished to withdraw her application for review of the decision to refuse to grant her a protection visa. The letter advised:

We have accepted your withdrawal. Accordingly, we have decided that we no longer have jurisdiction to review the delegate's decision.

9    The letter also attached an AAT information document titled “Information about withdrawing an application for review – MR Division”, which commences with the following information:

Withdrawing an application for review

An application for review can be withdrawn at any time prior to a decision being made on the application. An application is not regarded as withdrawn until we decide that we have no jurisdiction to review the application as a result of the withdrawal.

Once we decide we have no jurisdiction as a result of an application being withdrawn we cannot take any further action on the application for review. The decision under review remains unchanged, and the Department of Home Affairs is notified of the withdrawal.

10    On 6 July 2020, the applicant lodged a second application to the AAT, again seeking review of the same delegate’s decision. On 10 July 2020, the AAT wrote to the applicant, advised of the view of the writer that the application was not valid because a prior application had been dealt with, noted that the decision as to validity had to be made by a member of the AAT, and invited her to comment on the validity of her second application by 24 July 2020. The applicant did not respond, nor did she seek additional time in which to do so.

11    On 22 September 2020, the AAT, by one of its members, decided that it did not have jurisdiction by reason of the prior application which had been dealt with. The AAT concluded that:

[3]    An application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application on 19 May 2020. 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.

[4]    On 10 July 2020, the Tribunal wrote to the applicant and invited her to comment on the validity of the application in writing by 24 July 2020. At the time of this decision the applicant has not commented on the validity of the application.

[5]    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.

DECISION

[6]    The Tribunal does not have jurisdiction in this matter.

12    On 14 October 2020, the applicant applied for a review of the AAT decision. On 9 January 2025, the application was dismissed. The primary judge addressed the jurisdiction question and then the grounds of review. The grounds of review do not need to be revisited in light of the conclusion her Honour reached about the Tribunal’s jurisdiction. It is more efficient to reproduce what her Honour said on the jurisdiction question rather than try to summarise it:

The effect of the applicant’s withdrawal of the first application for review prior to a hearing

[16]    The AAT Act relevantly provided at the relevant time:

24Z Scope of operation of this Part

(1)    Except for the provisions specified in subsection (2), this Part does not apply in relation to a proceeding in the Migration and Refugee Division.

(2)    The following provisions of this Part apply in relation to a proceeding in the Migration and Refugee Division:

(a)    section 25;

(b)    section 42.

…

42A    Discontinuance, dismissal, reinstatement etc. of application

…

Deemed dismissal—applicant discontinues or withdraws application

(1A)    A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.

[17]    The effect of s 24Z of the AAT Act is that s 42A(1A) of the AAT Act, being the express provision for a party to discontinue, did not apply to proceedings in the Migration and Refugee Division.

[18]    Therefore, due to the operation of s 24Z of the AAT Act, there was nothing contained within the AAT Act which permitted the applicant to withdraw an application for review, or for the Tribunal to accept a withdrawal. In the absence of an express statutory provision, one must look to the common law to determine whether there is a right for an applicant to withdraw an application and an ancillary right of the Tribunal to accept a withdrawal.

[19]    Unless the wording of a statute clearly fetters the right of an applicant to unilaterally withdraw an application, then the common law principle applies, such that an applicant has an inherent right to withdraw. Once an application is withdrawn, the application is no longer subsisting or effective and the Tribunal has no statutory authority to proceed with the matter: Christie v Neaves (2001) 113 FCR 279; SZASD Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 472 at [10].

[20]    In Behay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 357 FLR 123 (Behay), Judge Egan considered the effect of s 24Z of the AAT Act on the withdrawal of applications for review to the Tribunal and said:

18    It was accepted that s. 24Z of the AAT Act did not expressly provide, by clear words, that any common law right in existence prior to its enactment would be abrogated.

…

20    The Court finds that it was never the intention of Parliament that an application for review made in the Migration and Refugee Division of the Tribunal could only be finally determined upon the handing down by it of a decision after a full consideration by the Tribunal of all of the material before it in any given review application. Clear words in the body of any amending legislation would have been required for that to be so. In circumstances such as the present, the preferred course for the Court to adopt is for recognition to be given to what was the historical common law position relating to the withdrawal of applications for review made before administrative bodies. That position was held in Queensland Nickel Management Pty Ltd & Great Barrier Reef Marine Park to be as follows:

[8] There is a considerable line of authority to the effect that an applicant to a court, tribunal or other decision-maker, is entitled to withdraw the application at any time, in the absence of a legislative provision removing or fettering that right…

…

22    Having accepted the applicant’s written withdrawal of her application for review before the Tribunal, the Tribunal was functus officio. It had no further power to proceed to hear and determine the applicant’s application for review.

[21]    I agree with Judge Egan’s reasons that s 24Z does by clear words fetter the right of an applicant to withdraw an application. Therefore, the common law applies, such as to permit the applicant to validly withdraw the first application. In deciding to accept the applicant’s valid withdrawal of her first application, the Tribunal was correct to conclude it had no jurisdiction to hear the second application for review.

13    If there had been a hearing, I would have been satisfied that the primary judge’s reasoning and conclusion as to the absence of jurisdiction by the Tribunal were correct. Since the AAT had assessed and accepted the applicant’s withdrawal of the first application, the delegate’s decision had already been the subject of a valid review by the AAT and, therefore, it did not have jurisdiction to entertain the applicant’s second application.

14    In those circumstances, the proposed grounds of appeal that were sought to be relied upon by the applicant, which relied upon the Tribunal having jurisdiction in the first place, could not possibly have succeeded. Had the applicant attended, and a hearing taken place, it is inevitable that the extension of time would have been refused.

Associate:

Dated:    28 August 2026