BEV21 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1204

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BEV21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1204

File number(s):

ADG 124 of 2021

Judgment of:

JUDGE GERRARD

Date of judgment:

30 July 2025

Catchwords:

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – where applicant has voluntarily left Australia with no right of re-entry – where condition of the grant of a protection visa is that the applicant is in Australia – no appearance by or on behalf of the applicant – application dismissed pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Legislation:

Migration Act 1958 (Cth) s 426A(1A)(b), 476

Migration Regulations 1994 (Cth) Sch 2 cl 866.411

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13(a)

Cases cited:

AUD15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1471

DXO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 171

Division:

Division 2 General Federal Law

Number of paragraphs:

17

Date of hearing:

30 July 2025

Place:

Adelaide

Applicant:

No appearance by or on behalf of the applicant

Counsel for the First Respondent:

Tara Rossetto

Solicitor for the First Respondent:

Sparke Helmore

Second Respondent:

Submitting appearance, save as to costs

ORDERS

ADG 124 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BEV21

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GERRARD
DATE OF ORDER:	30 JULY 2025

THE COURT ORDERS THAT:

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

2.The application for judicial review filed on 10 May 2021 be dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth).

3.The applicant pay the first respondent’s costs fixed in the sum of $3,750.

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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GERRARD:

1. On 10 May 2021, the applicant filed an application in this Court seeking judicial review of a decision of the Administrative Appeals Tribunal (as it then was) (the Tribunal) dated 28 April 2021 confirming its earlier decision on 12 April 2021 to dismiss the application under s 426A(1A)(b) of the Migration Act 1958 (Cth) (the Act) as the applicant failed to appear before it.

2. The grounds of the judicial review application are as follows (without alteration):

   1.The Tribunal found that it could not hear my case because my application for a protection visa did not meet criterion for protection visa and not satisfied to meet the obligation as a refuse.

   2.The Tribunal assume and finds that me the applicant come to Australia for work purpose and not because I’m a fear with the persecution in my country which is not true and I feel unhappy to conclude that way without investigation being done to verify my reason according to law.

   3.Therefore the decision made by the Tribunal is unfair to me.

3. Orders were made by Registrar Chapman on 11 February 2025 for the matter to be listed for final hearing on a date to be advised.

4. On 2 July 2025, the parties were advised by email that the matter was listed for final hearing on 15 August 2025.

5. On 23 July 2025, the legal representatives of the first respondent (the Minister) emailed my Associate (copying the applicant) requesting the Court list a directions hearing and advising as follows:

   …

   This matter is listed for final hearing before his Honour on 15 August 2025 at 10am ACST.

   The applicant departed Australia on 26 May 2025 and does not hold a visa that would permit his re-entry into Australia (see affidavit filed on 18 July 2025 attached).

   On 16 July 2025, we emailed the applicant to confirm whether he wished to proceed with the application, noting that the Minister considered that it was futile once he departed Australia because he cannot be granted the visa (cl 866.411 in Schedule 2 to the Migration Regulations 1994 (Cth)), and invited him to discontinue his proceeding by consent orders. We advised that if he did not provide any response by COB 18 July 2025, we would write to the Court requesting a directions hearing to be listed expeditiously (attached).

   …

6. The Minister also provided a copy of the email of 16 July 2025 referred to above. That email stated as follows:

   …

   We act for the Minister in your court proceeding, which is scheduled for final hearing on 15 August 2025 before Judge Gerrard.

   We have been instructed that you departed Australia on 26 May 2025. In those circumstances, we ask that you confirm whether you wish to proceed with your Court case, noting that the Minister considers that it is now futile as you have departed Australia and cannot be granted the visa.

   If you do not wish to continue, please sign and date the attached draft proposed orders discontinuing your application and agreeing to pay the Minister’s legal costs.

   If you wish to continue with your application, please note the following:

   •We will write to the Court confirming that you have departed Australia and seeking that your case be scheduled for a directions hearing before a judge expeditiously.

   •It will be a matter for you to make arrangements with the Court to facilitate your appearance at any hearings that are scheduled. If you fail to appear at any hearing, the Minister will seek for your case to be dismissed with costs.

   •The costs that the Minister will seek in the event that you do not discontinue you proceeding, and where the Minister is successful, will be greater than the costs sought in the proposed consent orders.

   If you do not respond by Friday, 18 July 2025 at 5pm ACST, we will write to the Court attaching this correspondence and requesting that a directions hearing be listed as soon as possible.

   …

7. The matter was listed for a directions hearing before me on 30 July 2025.

8. Unsurprisingly, the applicant did not appear at the directions hearing notwithstanding arrangements were made for the applicant to attend by Microsoft Teams. My Associate attempted to contact the applicant via the telephone number in the footer of their application for review. The matter was then called three times outside the courtroom but neither the applicant, nor a representative for the applicant, appeared.

9. In those circumstances, counsel for the Minister made an application for the application to be dismissed.

10. The Minister relies on an affidavit of Tara Rossetto affirmed on 14 July 2025 and filed on 18 July 2025. That affidavit annexes Department records which establish that the applicant departed Australia on 26 May 2025 and that his Bridging Visa C ceased on 28 May 2025. Consequently, the applicant does not currently hold a valid visa which would allow him to lawfully enter into Australia.

11. As far as the Court is aware, the applicant departed the country voluntarily.

12. The substantive application ultimately relates to a decision to refuse the applicant a Protection (Subclass 866) (Class XA) visa. It is a requirement for the grant of that visa that the applicant be in Australia (cl 866.411 of Schedule 2 to the Migration Regulations 1994 (Cth)). As a consequence of the applicant’s departure, and the absence of any right of re-entry into Australia, the applicant could not be granted the visa which he seeks.

13. In these circumstances, the application is futile and should be dismissed (see, similarly,  AUD15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1471 and DXO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 171).

14. The Court is satisfied that the applicant has had proper notice of the listing of this matter. The Court is also satisfied that the applicant has had notice that the Minister would seek to have the matter dismissed and the basis for seeking that dismissal.

15. The Court also observes that the grounds of the application, relating solely to the merits of the applicant’s claims for protection, could not establish jurisdictional error in respect of the Tribunal’s decision which was, as observed, a confirmation of its earlier decision to dismiss the applicant’s application for failure to appear.

16. In any event, even if the applicant had raised grounds which were reasonably arguable, it would still be futile to make orders remitting the matter given the applicant simply cannot secure the visa which is the subject of these proceedings.

17. In these circumstances, the Court is of the view that it is appropriate to dismiss the application pursuant to r 13.13(a) on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.

Associate:

Dated:       30 July 2025