Blissett v Minister for Immigration - Migration Judgment

Original Word Document (95.9 KB) Federal Court of Australia

Blissett v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2026] FCA 349

| File number(s): | NSD 1422 of 2025 |
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| Judgment of: | GOODMAN J |
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| Date of judgment: | 25 March 2026 |
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| Catchwords: | PRACTICE AND PROCEDURE – application for summary judgment – no reasonable prospects of successfully prosecuting the proceeding in circumstances where the proceeding is based upon a mere error allegedly made by a delegate of the Minister; and where the allegation of error is based upon a construction of s 501(7)(c) of the Migration Act 1958 (Cth) that is contrary to well-established principles – judgment for the respondent |
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| Legislation: | Federal Court of Australia Act 1976 (Cth), s 31A

Migration Act 1958 (Cth), s 501

Federal Court Rules 2011 (Cth), r 26.01 |
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| Cases cited: | Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256

Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113

DRA Global Limited v Naude [2026] FCA 94

Lal v Royal Australasian College of Physicians [2025] FCA 348

Mpinda v Fair Work Commission [2022] FCA 1111

Price v Minister of Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171; (2023) 301 FCR 484

Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808

Quach v Commissioner of Taxation [2019] FCA 1729; (2019) 168 ALD 130

State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371

ThoughtWare Australia Pty Limited v IonMy Pty Ltd [2023] FCA 906 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 28 |
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| Date of hearing: | 24 and 25 March 2026 |
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| Counsel for the Applicant: | The applicant did not appear |
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| Solicitor for the Respondent: | Mr G Bains of Australian Government Solicitor |
ORDERS

| | | NSD 1422 of 2025 |
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| BETWEEN: | DIONE TREVOR BLISSETT

Applicant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent | |

| order made by: | GOODMAN J |
| DATE OF ORDER: | 25 MARCH 2026 |
THE COURT ORDERS THAT:

1. Pursuant to s 31A of the Federal Court Act of Australia 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) there be judgment in favour of the respondent against the applicant in relation to the whole of the proceeding.

2. The applicant pay the costs of the respondent of and incidental to the proceeding, as agreed or taxed.

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

REASONS FOR JUDGMENT

GOODMAN J:

1 Earlier today, I made orders for judgment in this proceeding in favour of the respondent against the applicant, and for the applicant to pay the respondent’s costs of the proceeding. These are my reasons for doing so.

2 The applicant, Mr Dione Blissett, claims damages against the respondent Minister arising out of a decision made by the delegate of the Minister under s 501(3A) of the Migration Act 1958 (Cth) to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa, which decision resulted in the applicant’s deportation from Australia to New Zealand.

3 That decision was based, in part, upon the delegate’s assessment that the applicant had been sentenced to a term of imprisonment of 12 months or more (within the meaning of s 501(7)(c) of the Migration Act) when Judge English of the District Court of New South Wales imposed a sentence of 18 months upon the applicant (which reflected the sentence of the same length imposed by a Magistrate of the Local Court of New South Wales).

4 By his originating application filed on 14 August 2025, the applicant seeks the following orders (as written):

1. That the Defendant is liable to payment of damages to the Plaintiff, on assessment and calculation of the Register. In accordance with Federal Court Rules 2011 – Rule 30.41.

2. That the Defendant is liable to the payment of exemplary damages, (as set out in the Statement of Claim), to the Plaintiff. As may please the Court.

(underline emphasis in original)

5 On the same day, the applicant filed a statement of claim and an affidavit which he had made.

6 The essence of the applicant’s claim, taken at its highest, appears to involve the following propositions:

(1) the delegate cancelled the applicant’s visa under s 501(3A) of the Migration Act on the basis that he did not pass the character test because he had a “substantial criminal record”;

(2) “substantial criminal record” was defined relevantly in s 501(7)(c) of the Migration Act as follows:

For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more;

…

(bold and italic emphasis in original);

(3) the applicant did not satisfy that definition because:

(a) the maximum period of the applicant’s confinement to imprisonment ordered by Judge English was 364 days;

(b) the applicant’s actual imprisonment totalled 361.5 days;

(4) as the applicant did not satisfy that definition, the delegate’s conclusion that he did was an error; and

(5) the applicant is entitled to damages to compensate him for the consequences of that error, together with exemplary damages.

7 The Minister applied under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth) for summary judgment. In support of that application the Minister relied upon an affidavit of Ms Zita Rowling, a solicitor in the employ of the Australian Government Solicitor, made on 30 October 2025, together with the exhibits to that affidavit. The Minister also relied upon the applicant’s affidavit affirmed on 5 March 2025 (filed on 14 August 2025).

8 Section 31A of the FCA Act provides, in so far as is presently relevant, that:

31A Summary judgment

…

(2)     The Court 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.

…

(bold emphasis in original; underline emphasis added)

9 Similarly, r 26.01 of the Rules relevantly provides:

26.01 Summary judgment

(1)     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; or

(e)     the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

…

(bold emphasis in original; und erline emphasis added)

10 The principles relevant to summary judgment under s 31A are well-established: see e.g., Australian Securities and Investments Commission v Cassi matis [2013] FCA 641; (2013) 220 FCR 256 (Reeves J) at 266 to 271 ([25] to [45]); Quach v Commissioner of Taxation [2019] FCA 1729; (2019) 168 ALD 130 at 133 to 134 12; Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [26] to 29; Mpinda v Fair Work Commission [2022] FCA 1111 at 22; ThoughtWare Australia Pty Limited v IonMy Pty Ltd [2023] FCA 906 at [46] to 52; Lal v Royal Australasian College of Physicians [2025] FCA 348 at [32] to 38; and DRA Global Limited v Naude [2026] FCA 94 at [54] to 56.

11 In Quach, Justice Jackson provided the following summary of relevant principles at 133 to 134 [12]:

The applicable principles are well established and may be summarised as follows:

(1)     It is the applicant for summary judgment who bears the onus of persuading the court that the proceedings should be determined summarily: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; 302 ALR 671; 94 ACR 623; [2013] FCA 641 (Cassimatis) at [45].

(2)     It may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success: Spencer (2010) 241 CLR 118; 269 ALR 233; [2010] HCA 28 (Spencer) at [58]; see also at [22].

(3)     As the combined effect of s 31A(2) and (3) makes clear, the inquiry is whether the prosecution of the relevant part of the proceeding has no reasonable prospect of success, not whether that defence is hopeless or bound to fail: Spencer at [52].

(4)     The test is a departure from earlier provisions authorising summary judgment to be ordered: Spencer at [53]. Section 31A has lowered the bar and softened the test: Cassimatis at [46].

(5)     Nevertheless, the power to dismiss an action summarily must be exercised with caution and is not to be exercised lightly: Spencer at [24] and [60].

(6)     Section 31A(1) provides that when the court is satisfied that the respondent to an application for summary judgment has no reasonable prospect of successfully prosecuting or defending the proceeding or that part of the proceeding, then the court ‘may’ give judgment. The assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; 259 ALR 319; [2009] FCAFC 117 at [28].

(7)     A practical judgment as to the case at hand is required, by reference to the stage it has reached: Spencer at [25]; Cassimatis at [46].

(italic emphasis in original)

12 In Prior, Justice McKerracher explained at [29]:

Other principles that have been identified in relation to s 31A include that:

(a)     a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd (2008) 250 ALR 82 per Logan J (at [41]), cited in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 per McKerracher J (at [3]), though this must now be read with Spencer (at [58]-[60]);

(b)     there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: “ Sam Hawk ” v Reiter Petroleum Inc (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]), cited in Buurabalayji (at [3]);

(c) an application for summary dismissal is likely to succeed where the applicant ’ s success in the principal proceedings relies upon a question of fact that can truly be described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, an application for summary dismissal is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [47]);

(d) similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed if it is able to demonstrate to the Court that the applicant ’ s success in the principal proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority: Cassimatis (at [ 48]); see also: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [14]-[15]): s 31A is amenable to resolving straightforward questions of law; SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]): summary judgment may still be appropriate if a question raised is of some complexity; McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited): s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial;

(e)     a Court should be particularly cautious about ordering summary determination where proceedings involve questions of fact and law, or mixed questions of fact and law, as these combinations usually give rise to some complexity that would require a full hearing. In such circumstances the moving party, as a general principle, would need to show a substantial absence of merit on either of the question of fact or law concerned, or on the mixed question: Cassimatis (at [49]); and

(f)     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) 167 FCR 372 per Gordon J (at [127]), cited in Buurabalayji (at [3]). See also Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 per Gilmour J (at [6]).

(bold and italic emphasis in original; underline emphasis added)

13 As is plain, the standard of “no reasonable prospect of successfully prosecuting the proceeding” is common to both s 31A of the FCA Act and r 26.01(1)(a) of the Rules. The standard in r 26.01(1)(a) is in effect identical to the standard in s 31A of the FCA Act and accordingly, the principles outlined above also apply to r 26.01(1)(a): Quach at 133 [11]; Prior at [27]; Mpinda at [21]; DRA Global at [54].

14 I was satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding, for the following reasons.

15 First, the applicant’s statement of claim discloses no cause of action which could ground a claim for damages against the Minister. Nor is there anything in his affidavit or in the correspondence exhibited to Ms Rowling’s affidavit which suggests a viable claim. It is trite law that a mere error on the part of an administrative decision-maker will not give rise to an action in damages: see, e.g., State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 at 403 to 404 ([172] to [177]) ( Spigelman CJ).

16 Secondly, as set out above, the applicant’s claim for damages is premised upon establishing that he did not have a “substantial criminal record”. The applicant lacks any reasonable prospects of succeeding in this aspect of his claim (and accordingly, of his claim as a whole) in circumstances where the question of whether someone has been “sentenced to a term of imprisonment of 12 months or more” is to be answered by reference to the sentence imposed and not by reference to the manner in which the sentence is to be, or is, served: see e.g., Price v Minister of Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171; (2023) 301 FCR 484 at 494 to 495 ([40] to [42]) (Katzmann, O’Bryan and McElwaine JJ); Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113 at 115 to 117 ([3] to [12]) (Rares J; Moore J agreeing) and 139 94. Here, there can be no doubt that the sentence imposed was a sentence of 18 months and thus a sentence of more than 12 months.

17 As I was satisfied that the applicant has no reasonable prospects of successfully prosecuting this proceeding, the discretion to give judgment in favour of the respondent against the applicant was enlivened.

18 In exercising that discretion, I considered whether the applicant ought be given a further opportunity to advance a case. However, I decided against that course for the following reasons: (1) the applicant has been on notice since 15 September 2025 of the deficiencies in his case (when the Minister’s solicitors wrote to him identifying those deficiencies and suggesting that he obtain legal advice) and has not sought to address those deficiencies; (2) relatedly, the applicant was given an opportunity, pursuant to orders made by a Registrar of the Court on 17 December 2025 to file and serve any amended originating application and statement of claim by 19 January 2026 and did not do so; (3) the applicant failed to file any written submissions in response to the Minister’s submissions on this application, in circumstances where the 17 December 2025 orders required that such submissions be filed and served by 24 February 2026; and (4) crucially, it is not apparent that a viable case of the kind outlined by the applicant can be advanced.

19 For the above reasons, I was satisfied that summary judgment should be entered in favour of the Minister against the applicant in relation to the whole of the proceeding. There was also no reason why costs should not follow the event.

Adjournment application

20 Finally, it is necessary to address an application by the applicant to adjourn the hearing.

21 The hearing date of 24 March 2026 at 10:15am was set on 17 December 2025. The hearing was to occur by web conference using Microsoft Teams. This was confirmed by a letter sent by the Court’s Migration Team to the applicant, by email and post, on 23 December 2025.

22 On 23 March 2026, the parties were provided with a video link to enable the applicant to appear by web conference.

23 At the commencement of the hearing on 24 March 2026, the applicant was not present. Mr Bains, who appeared on behalf of the Minister, brought to the attention of the Court an email from the applicant to the Registry of the Court (which had been copied to Mr Bains) sent at 10:08am that day (i.e., seven minutes before the hearing was due to commence) in the following form (as written):

Dear Register.

Attached are screenshots of what are, likely intentionally, corrupted correspondance with the Federal Court of Australia and the Respondant.

I believe that on the basis of the initial discovery of the corrupted electronic records that there may be further corrupted information concerning the “proceeding”.

On that basis adjournment is sought of the hearing scheduled for, today, Tuesday, 12.15, and the resaons be recorded for the adjournment.

I intend to provide further particulars of the corrupted correspondance to the Federal Court of Australia, as soon as reasonably possible.

The Respondant has been (cc).

24 Following a short adjournment to allow the Court and Mr Bains to read the applicant’s email and its various attachments, Mr Bains submitted that the Court should dismiss the application for an adjournment and proceed to hear the Minister’s application for the summary dismissal of the proceeding. I declined to do so and instead adjourned the hearing until 9:30am on 25 March 2026.

25 At 10:55am on 24 March 2026, my Associate sent an email to the applicant and to Mr Bains in the following terms:

I refer to the hearing of this proceeding at 10:15 am today.

I note that there was no appearance by or on behalf of Mr Blissett.

Mr Bains, who appeared on behalf of the Minister, provided to the Court an email from Mr Blissett to the Court on which he was copied and which was sent at 10:08am today.

His Honour adjourned the hearing until 9:30am tomorrow, 25 March 2026. A copy of the order is attached.

The link for the hearing tomorrow is:

Join:

https://teams.microsoft.com/meet/42296050232416?p=Htn8aIyDZd6RiUlzqN

Meeting ID: 422 960 502 324 16

Passcode: MR2QM72H

At the commencement of that hearing, his Honour will consider any adjournment application that Mr Blissett wishes to make. If an adjournment application is made and is unsuccessful (or if no adjournment application is made), then the hearing of the Minister’s application for summary dismissal will proceed immediately thereafter.

Should either party wish to file any affidavit evidence or a brief submission concerning any adjournment application, then this should be done by 7:00pm tonight.

(bold and underline emphasis in original)

26 No affidavit evidence or submissions concerning the adjournment application were filed.

27 At the resumption of the hearing at 9:30am on 25 March 2026, the applicant did not appear.

28 In those circumstances, the hearing of the Minister’s application proceeded, with the result earlier mentioned.

| I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. |
Associate:

Dated: 25 March 2026

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