Background
CDD24, a Malaysian citizen, applied for a Subclass 866 protection visa in 2018. After a ministerial delegate refused the application, he sought merits review. The Tribunal dismissed that review in March 2024 when he failed to attend the scheduled hearing, then confirmed the dismissal after he did not seek reinstatement within the prescribed 14-day period.
CDD24 sought judicial review in the Federal Circuit and Family Court of Australia (Division 2). A registrar summarily dismissed his application, and a primary judge upheld that result on de novo review. Because the summary-dismissal judgment was interlocutory, CDD24 required leave under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) to appeal to the Federal Court.
The Court’s Holding
Justice Younan refused leave to appeal because none of the proposed grounds showed that the primary judgment was attended with sufficient doubt to warrant reconsideration. The Tribunal had validly invited CDD24 to the hearing at his nominated email address, its decision to dismiss the review after his non-attendance was not legally unreasonable, and it was required to confirm the dismissal once he failed to seek reinstatement within 14 days.
The complaints that the nominated email belonged to a former agent and that the Tribunal should have sent a text-message reminder had not been raised before the primary judge, and no adequate explanation was given for that omission. They also lacked substantive merit: CDD24 was legally deemed to have received documents emailed to the last address he supplied, the evidence showed that he repeatedly used that address, and the Tribunal had no obligation to provide additional notice by text message. The Court dismissed the leave application and ordered CDD24 to pay the Minister’s costs, fixed at $4,800.
Key Takeaways
- Leave to appeal an interlocutory summary-dismissal judgment requires both sufficient doubt about the decision and potential substantial injustice; failure on the first limb is decisive.
- A Tribunal document emailed to the last address provided by the recipient was deemed received under the applicable Migration Act provisions, regardless of an asserted lack of actual receipt.
- Arguments not advanced at first instance ordinarily cannot be introduced on appeal without an adequate explanation and sufficient merit.
Why It Matters
The decision underscores that migration applicants must keep their nominated contact details current, respond promptly to Tribunal communications, and comply with short reinstatement deadlines. A failure to attend a hearing can permit dismissal without consideration of the underlying protection claims.
It also illustrates the difficulty of obtaining leave to appeal a summary dismissal where the applicant conceded below—and again at the leave hearing—that no jurisdictional error could be identified. New procedural complaints will not ordinarily supply the necessary doubt when they were not raised below and conflict with statutory notice rules and the evidentiary record.