AJD20 v Minister for Immigration and Multicultural Affairs

[2025] FCA 227

FEDERAL COURT OF AUSTRALIA

AJD20 v Minister for Immigration and Multicultural Affairs [2025] FCA 227    

Appeal from:	Application for extension of time to appeal:  AJD20 v Minister for Immigration & Anor [2020] FCCA 2985
File number(s):	NSD 3 of 2021
Judgment of:	GOODMAN J
Date of judgment:	19 March 2025
Catchwords:	MIGRATION – application to extend time to appeal from a decision of the (then) Federal Circuit Court of Australia – applicant did not appear – application dismissed
Legislation:	Federal Court Rules 2001 (Cth), rr 31.23, 35.14, 35.33
Cases cited:	AJD20 v Minister for Immigration & Anor [2020] FCCA 2985
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	8
Date of hearing:	19 March 2025
Solicitor for the Applicant:	The applicant did not appear
Solicitor for the First Respondent:	Ms C Juarez of Minter Ellison
Solicitor for the Second Respondent:	The second respondent filed a submitting notice save as to costs

ORDERS

NSD 3 of 2021

BETWEEN:

AJD20

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	GOODMAN J
DATE OF ORDER:	19 MARCH 2025

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs of the application.

3.The first respondent serve a copy of these orders and the reasons for judgment on the applicant, forthwith upon receiving them.

4.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.

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

REASONS FOR JUDGMENT

GOODMAN J:

1. The applicant, a citizen of Nepal, seeks an extension of time in which to appeal from orders made by the (then) Federal Circuit Court of Australia on 3 November 2020. By those orders, the reasons for which are set out in AJD20 v Minister for Immigration & Anor [2020] FCCA 2985, the primary judge dismissed the applicant’s application for judicial review of a decision of the second respondent made on 15 January 2020, which affirmed a decision of a delegate of the first respondent (Minister) made on 3 August 2016.

2. The application was filed on 5 January 2021. It is expressed to be an application under r 31.23 of the Federal Court Rules 2001 (Cth), but is in fact and in substance, an application under r 35.14 of the Rules.

3. On 18 February 2021, a Registrar of this Court made a series of orders for the preparation of this application for hearing, including orders for: the filing of a draft notice of appeal setting out particularised grounds of appeal within ten business days; and for the applicant to file and serve a written outline of submissions no later than ten business days before the hearing date. The applicant did not comply with those orders.

4. On 16 December 2024, and again on 12 February 2025, the Court notified the applicant – by email sent to the email address he had provided to the Court – of the date, time and location of the hearing.

5. On 19 February 2025, the solicitors for the Minister sent an email to the applicant again notifying the applicant of the date, time and location of the hearing; and foreshadowing the possibility of a dismissal application if the applicant did not appear at the hearing.

6. The applicant did not appear at the hearing today.

7. Ms Juarez, who appeared for the Minister, moved pursuant to r 35.33(1)(a)(i) of the Rules. Rule 35.33 provides in so far as is presently relevant:

   35.33   Absence of a party

   (1) If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, any other party may apply to the Court for an order that:

   (a) if the absent party is the applicant:

   (i) the application be dismissed; or

   (ii) the application be adjourned; or

   (iii) the hearing proceed only if specified steps are taken; or

   ...

   (2) If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

   (a) setting aside or varying the order; and

   (b) for the further conduct of the proceeding.

8. As noted above, the applicant was absent when the application was called on for hearing. Thus, the Court’s discretion to dismiss the application was enlivened. In circumstances where the applicant has failed to comply with previous orders of the Court and was put on notice of the details of the hearing, an order for dismissal is appropriate. It will remain open to the applicant to make an application under r 35.33(2) if there are circumstances, presently unknown to the Court, which justify such an application. Costs should follow the event.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.

Associate: 

Dated:       19 March 2025