ALW25 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1681
•15 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ALW25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1681
File number(s): SYG 101 of 2025 Judgment of: JUDGE ZIPSER Date of judgment: 15 October 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Review Tribunal refusing to grant protection visa – applicant absent from Court hearing – dismissal for non-appearance Legislation: Migration Act 1958 (Cth) ss 65, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) rr 22.04, 24.04(a)
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 7 October 2025 Place: Parramatta Applicant: No appearance Solicitor for the Respondents: Sophie Edmondstone (MinterEllison Lawyers) ORDERS
SYG 101 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALW25
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
15 OCTOBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application is dismissed pursuant to r 22.04(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
3.The applicant pay the first respondent’s costs in the sum of $6,200.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 10 January 2025, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Review Tribunal (ART) dated 9 December 2024. The ART affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection (subclass 866) visa under s 65 of the Act.
For the reasons that follow, the application to this Court is dismissed pursuant to r 22.04(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules).
FACTUAL BACKGROUND
In April 2017, the applicant, a citizen of Malaysia, first arrived in Australia on a visitor visa.
On 7 October 2022, the applicant applied for a protection visa. The applicant claimed to fear a real risk of serious harm if he returned to Malaysia on the basis of his support for homosexuality and opposition to forced labour.
On 12 January 2023, a delegate of the first respondent made a decision refusing to grant the applicant the visa.
On 17 January 2023, the applicant applied to the Administrative Appeals Tribunal (as it then was) for review of the delegate’s decision.
On 31 October 2024, the ART (which had recently replaced the Administrative Appeals Tribunal) wrote to the applicant and requested he complete a pre-hearing information form which included an opportunity for the applicant to provide further information about his protection claims. The applicant did not respond to the ART’s request.
On 13 November 2024, the ART invited the applicant to attend a hearing on 2 December 2024.
On 1 December 2024, the applicant sent an email to the ART stating that he would not attend the hearing, and “request[ed] the Tribunal to make a decision on the papers without holding a hearing”.
On 2 December 2024, the applicant did not appear at the hearing before the ART.
On 9 December 2024, the ART made a decision affirming the delegate’s decision not to grant the applicant a protection visa.
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to hearing on 7 October 2025
On 10 January 2025, the applicant lodged in this Court an application for judicial review of the ART’s decision. The application contained the following three grounds (as written) (Application):
1. I believe that the case officer made a jurisdiction error by saying that I did not face a real risk of significant faced harm from existing government still controlled by UMNO and harm from UMNO supporters. My family and I shall face harm again from UMNO supporters if found that I return to Malaysia because I made comments on social media about to support the legalisation of homosexuality in Malaysia. if I have return to Malaysia may face harm or kill by UMNO supporters, because local authorities cannot help or protect me for 24 hours. The threat is real and significant, which would cause a fatal influence on me. Therefore, I would like to apply for protection in Australia. However, the case officer failed to investigate the applicant's claims by misconstruing the details as set out in s36(2)(a), s36(2C), s36(3), s5H(1) of the Act and Schedule 2 to the Migration Regulations 1994. The officer erroneously construed the existence of the risk of life or significant harm to the applicants upon their return to Malaysia.
2.I believe that the ART case officer made a jurisdiction error by affirming the decision not to grant the applicant a protection visa. The ART case officer failed to consider my claim or integer of a claim and made an unreasonable decision.
3. I seek for my claims to be given a second chance for me to provide more details to straighter my claims but not just to concern.
The applicant recorded in the application his email address for service (Applicant’s Email Address) and contact phone number (Applicant’s Phone Number).
On 6 August 2025, a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing a written submission, any amended application, and any additional evidence on which he sought to rely.
On 8 August 2025, the registry of the Court sent an email to the parties, including to the applicant at the Applicant’s Email Address, stating the matter was listed for hearing on 7 October 2025. The email included the time and place of the hearing.
On 23 September 2025, the first respondent filed a written submission.
On 23 September 2025, the first respondent sent an email to the applicant at the Applicant’s Email Address which included the date, time and place of the hearing, and added that if the applicant did not appear at the hearing, the first respondent may apply to have the matter dismissed for non-appearance.
On 29 September 2025, my associate sent an email to the parties, including to the applicant at the Applicant’s Email Address, reminding him of the date, time and place of the hearing.
The applicant did not file or serve any further materials before the hearing on 7 October 2025.
Hearing on 7 October 2025
The hearing on 7 October 2025 commenced at 10:20 am and concluded shortly after 10:25 am. The applicant did not appear at the hearing. The matter was called outside the court room prior to the commencement of the hearing. Around 10:15 am my associate phoned the applicant on the Applicant’s Phone Number. The applicant did not answer the phone.
At the hearing, Sophie Edmondstone from MinterEllison appeared for the first respondent. She requested that the application be dismissed under r 22.04 of the Rules.
Based on the materials referred to above, I am satisfied the applicant was aware of the date, time and place of the hearing on 7 October 2025. I agreed to Ms Edmondstone’s request to dismiss the application under r 22.04 of the Rules.
Re-instatement
If an event prevented the applicant from attending the hearing on 7 October 2025 and he is aggrieved that the application was dismissed in his absence, pursuant to r 24.04(a) of the Rules, he may apply to the Court to set aside the dismissal order and thereby re-instate the proceeding. If the applicant files and serves an application under r 24.04(a), he should file and serve an accompanying affidavit which provides evidence explaining the circumstances which prevented him from attending the hearing on 7 October 2025. In the absence of a satisfactory explanation from the applicant, a question may arise as to whether his conduct involves an abuse by the applicant of the process of the Court.
If the applicant is genuinely aggrieved that the application was dismissed in his absence and he files an application under r 24.04(a):
(a)He should also file and serve a written submission which seeks to identify a jurisdictional error in the ART’s decision. If the Court is not persuaded there is a jurisdictional error in the ART’s decision, there may be no utility in re-instating the proceeding.
(b)The Court will endeavour to list the re-instatement application promptly for hearing. The applicant must attend the hearing.
COSTS
Ms Edmondstone sought an order that the applicant pay the first respondent’s costs in the sum of $6,200 which was less than the first respondent’s solicitor/client costs and less than the scale amount of $9,097.93. I consider this amount is reasonable. I will make this order.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 15 October 2025
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