BJK21 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1135
•21 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BJK21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1135
File number(s): SYG 918 of 2021 Judgment of: JUDGE KAUR-BAINS Date of judgment: 21 July 2025 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – Protection (Class XA) Visa – dismissal for non-appearance
PRACTICE AND PROCEDURE – interlocutory application for an adjournment on medical grounds – application opposed – medical report did not disclose that the applicant was suffering from any medical condition that required immediate medical treatment which prevented the applicant from attending the hearing – adjournment refused
Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa) and 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 9.03 and 13.06(1)(c)
Cases cited: Dharma v Minister for Home Affairs [2019] FCA 431; (2019) 78 AAR 10
FQV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 225
Matson v Attorney-General (No 2) [2022] FCA 213
Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 107
Division: General Federal Law Number of paragraphs: 33 Date of hearing: 21 July 2025 Place: Sydney Applicant: No appearance Solicitor for the First Respondent: Mr M Vethecan of Clayton Utz Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 918 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BJK21
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
21 JULY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.
2.The name of the Second Respondent is amended to “Administrative Review Tribunal”.
3.The request made on behalf of the Applicant by email on 18 July 2025 at 7:42am for an adjournment of the final hearing in this matter be taken as an adjournment request and the requirement for the Applicant to file an Application in a Proceeding pursuant to rules 4.01(4) and 4.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) is dispensed with.
4.The interlocutory application for adjournment referred to in Order 3 is refused.
5.The application is dismissed pursuant to rule 13.06(1)(c) of the Rules consequent on the non-appearance of the Applicant.
6.The Applicant pay the First Respondent’s costs and disbursements fixed in the amount of $8,371.30.
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 Kaur-Bains
The applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) dated 29 April 2021. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) (subclass 866) Visa (protection visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
This matter was listed before me for a final hearing at 10:15am today on 21 July 2025. On 18 July 2025 at 7:42am, the applicant sent an email to my chambers requesting an adjournment of the final hearing on medical grounds. Before I deal with the application for an adjournment, it is relevant to identify the background and procedural history of this matter.
BACKGROUND
The applicant is a citizen of Pakistan. On 23 February 2014, the applicant arrived in Australia on a student visa that was valid until 21 September 2017. On 12 January 2016, the applicant departed for Pakistan from Australia and returned to Australia on 12 February 2016 using the same student visa.
Protection visa
On 5 June 2017, the applicant applied for the protection visa (Court Book (CB) 1 to 55) and claimed to fear persecution in Pakistan because he is a homosexual. The applicant provided a statutory declaration (CB 52 to 53) with his protection visa application, claiming that:
(a)he realised he was homosexual at 17 years of age because he had always had a sexual desire to be with other males;
(b)his father beat him up and did not talk with him much after discovering he and another 17-year-old boy (who I will refer to as “A” in this judgment) were having sexual relations at the applicant’s family home in December 2011;
(c)if he returned to Pakistan, he would be forced into an arranged marriage and if people knew that he was gay, then he and his family would be publicly shamed and punished, which would include being stoned, whipped and imprisoned;
(d)being gay is punishable in Pakistan and by Islam, and the punishment can be up to life imprisonment, physical punishment, and death;
(e)a boy in his hometown was assaulted by locals and the police because of his homosexuality, or perceived homosexuality, and disappeared afterwards. He feared the same would happen to him;
(f)he was pressurised by his family to get married during his visit back to Pakistan in his semester break from January 2016 to February 2016; and
(g)there is nowhere in Pakistan that he would be safe because he is gay.
Delegate’s decision
On 2 December 2021, a delegate of the Minister refused the applicant’s protection visa application (CB 66 to 77) on the basis that it was not satisfied the applicant was homosexual, estranged from his family, or faced a genuine risk of harm if he returned to Pakistan (CB 71).
The delegate made the following findings (CB 72):
(a)the applicant gave evidence that was lacking in detail regarding his sexual encounter with A and his homosexual experience in Pakistan;
(b)the applicant’s source of the plight of gay males in Pakistan was derived through YouTube and other online sources as opposed to personal experience, which raised doubt as to his claim of living as a gay male in Pakistan;
(c)the applicant gave contradictory evidence as to whether his parents continued to fund him; and
(d)the applicant gave inconsistent evidence about his estranged relationship with his family, which ultimately went to the truth of whether the applicant depended on his family’s financial support which was allegedly terminated on account of the applicant’s claimed sexuality.
The delegate found that the applicant’s willingness to provide misleading information to the department raised doubt in the delegate’s mind as to the credibility of the applicant as a witness (CB 72).
TRIBUNAL’S DECISION
On 16 April 2021, the applicant attended the Tribunal hearing assisted by his legal representative, Mr Ejaz Khan, and an Urdu interpreter.
The Tribunal stated that the primary issue for determination was whether the applicant was entitled to protection in Australia as a refugee under s 36(2)(a) of the Act, or if not, under the complementary protection criterion in s 36(2)(aa) of the Act ([12] of its reasons).
In assessing the applicant’s claim, the Tribunal stated that it had regard to the UNHCR's Guidelines on International Protection No. 9, Claims to Refugee Status based on Sexual Orientation and/or Gender Identity, which sets out considerations in assessing credibility ([16] and [17] of its reasons). The Tribunal at [20] of its reasons stated that it also had regard to the Tribunal’s own published guidelines and to relevant Australian court rulings regarding the taking of evidence from vulnerable persons, as well as the issue of credibility.
The Tribunal recorded the applicant’s claims at [21] to [43] of its reasons. Further, the Tribunal recorded the discussions between the Tribunal and the applicant, and evidence given by the applicant at the hearing before it at [44] to [90] of its reasons.
Ultimately, the Tribunal did not accept various aspects of the applicant’s claims. Notably, inter alia, at [100] of its reasons, the Tribunal found that the applicant’s description of the inception of his claimed sexual orientation with A as “lacking in plausible detail and, ultimately, lacking the ring of truth”. The Tribunal also found that there were two different versions given by the applicant as to when his father found the applicant with A when he came home unexpectedly, which affected the Tribunal’s view as to the applicant’s credibility ([101] of its reasons). Furthermore, the applicant’s return to Pakistan in early 2016 was inconsistent with his claims that he feared harm if he returned to Pakistan on account of his homosexuality.
GROUNDS IN THE APPLICATION
On 25 May 2021, the applicant filed an application for judicial review of the Tribunal’s decision. The application contained two grounds of review, both containing particulars. These are (as per original):
1.The Administrative Appeals Tribunal ('Tribunal') made a jurisdictional error by misapply the guidelines for assessing the credibility of the applicant and therefore the decision subject to this application is legally unreasonableness.
Particulars
Paragraph no 17 to 20 and 99
2.The Tribunal made a jurisdictional error by not properly considering corroborative evidence submitted and given during the interview.
Particulars
Paragraphs 39 to 43
a. The Tribunal did not give any weight to the intimate photographs with his partner whom he met on social media and dating websites.
b. Psychiatrist report prepared by Dr Gaurav.
PROCEDURAL HISTORY
The proceedings for judicial review were commenced by application dated 25 May 2021, as referred to in the preceding paragraph. The application was prepared by Mr Ejaz Khan of Juris Australia Lawyers. The application was supported by an affidavit affirmed on 20 May 2021 by the applicant, which annexed the decision of the Tribunal.
On 28 May 2021, the Minister filed a response. On 26 August 2021, the Minister filed an affidavit affirmed by Mr Stuart James Kovacs, annexing various documents that were in the department file. On 10 March 2025, orders were made by me listing the matter for final hearing at 10:15am on 21 July 2025.
On 4 July 2025, the Minister filed an outline of submissions. On 15 July 2025, the Minister filed a joint bundle of authorities.
On 15 July 2025, the applicant’s representative filed a notice of intention to withdraw as lawyer in accordance with r 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
APPLICATION FOR AN ADJOURNMENT
By email dated 18 July 2025 sent to my chambers and received at 7:42am, the applicant sought an adjournment as follows (as per the original email):
I am writing to respectfully request an adjournment of the hearing scheduled for 21 July 2025 at 10:15 AM.
Unfortunately, I am unable to attend the hearing due to a serious medical condition. I have been diagnosed with a subcutaneous lipoma,which, in my case, carries a serious health risk due to a strong family history of cancer associated with similar conditions. Two years ago, my uncle developed the same type of lipoma, which later turned malignant, and sadly, he passed away from cancer. My doctors have advised that if this growth is not removed promptly, there is a risk that it could develop into a similar life-threatening condition. which poses a risk of becoming cancerous. As a result, I have travelled overseas to undergo surgery, as the cost of the procedure in Australia is prohibitively expensive for me.
Given these circumstances, I respectfully request that the hearing be adjourned to a later date to allow me time to recover and return to Australia.
I sincerely apologise for any inconvenience this may cause and I have attached the supporting medical documentation.
The applicant attached a report from Dr Ahmed Bassiouny, a radiologist, who stated that the applicant had been examined on 26 May 2025 and had an ultrasound of the neck. The report stated that the findings were as follows:
Findings:
The site of complaint at the left posterior neck shows a well defined subcutaneous ovoid solid lesion with striations inside it shows no vascularity on doppler scan. It measures 40 x 64 x 28mm, ultrasound appearance is suggestive of a subcutaneous lipoma for follow up after 6 months.
By email dated 18 July 2025 sent at 10:32am from my chambers to the parties, the parties were informed that the matter would remain in the list for hearing at 10:15am on 21 July 2025 and at that time, the Court would consider the applicant’s adjournment application. The applicant was asked by the Court to indicate which country he was currently in, and leave was granted to the applicant to appear by Webex, with details of the video link provided.
On 18 July 2025 at 1:01pm, the applicant sent an email to my chambers as follows:
I am writing to respectfully request an adjournment of the hearing scheduled for 21 July 2025 at 10:15 AM.
I am currently in Pakistan to undergo surgery for a serious medical condition. The operation is scheduled for Monday, 21 July 2025, and I will be unable to attend the hearing in person or via video link due to being hospitalised and under medical care.
The procedure is medically necessary due to the risk of malignancy, and I have travelled to Pakistan as the cost of treatment is significantly lower than in Australia.
I sincerely apologise for any inconvenience this may cause and respectfully ask the Court to consider adjourning the matter to a later date to allow time for my recovery and return.
On 18 July 2025 at 2:13pm, my chambers sent the following email to the parties:
Can the applicant provide medical evidence that the medical procedure is scheduled on 21 July 2025. Further, can the applicant provide a letter from the doctor as to when [the applicant] will be fit to attend a hearing of the matter. On receiving that, the Court will consider whether to grant the adjournment.
The applicant did not respond to the above email. On 21 July 2025, an email was sent to the applicant enclosing the Webex details as to the hearing scheduled.
On 21 July 2025, Mr M Vethecan appeared for the Minister in person. The applicant did not join the hearing by Webex. The matter was called three times outside the courtroom and there was no appearance by the applicant.
The following was received into evidence and marked as exhibits:
(a)email correspondence between the applicant and my chambers on 18 July 2025 (Exhibit 1);
(b)medical report from Dr Ahmed Bassiouny (Exhibit 2);
(c)Department of Home Affairs Movement History of the applicant from 12 February 2016 to 11 July 2025 (Exhibit 3); and
(d)the applicant’s visa class WB-020, which enabled him to travel overseas (Exhibit 4).
I have treated the email from the applicant dated 18 July 2025 received at 7:42am, referred to at [18] of this judgment, as an application for an adjournment. The Minister opposed the application for an adjournment.
The Court needs to be satisfied that it is in the interest of the administration of justice for an adjournment to be granted. His Honour Judge Kendall said in Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 107 at [27]:
When determining whether or not an adjournment should be granted, the following factors are considered:
a)the evidence in support of the adjournment request and the explanation for the adjournment;
b)the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted such that there is a “just resolution” of the proceeding;
c)any prejudice to the respondent that cannot be mitigated by costs; and
d)modern principles of case management (including the avoidance of undue delay) and wastage of public resources.
(See: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44]).
On reviewing the medical report by Dr Ahmed Bassiouny (Exhibit 2), the radiologist said the ultrasound suggested the applicant had a subcutaneous lipoma and advised there should be a follow-up after six months. A subcutaneous lipoma is a benign, slow-growing, fatty tumour located below the skin. The fact that the radiologist suggested a follow-up after six months, which would be in November 2025 (a date after the final hearing of this matter listed on 21 July 2025), does not support the applicant’s suggestion that he was “unable to attend the hearing due to a serious medical condition”. Rather, the medical evidence suggests that the applicant needed to attend a further follow-up in November 2025, at which time a further diagnosis would be made. Further, the applicant was asked by the Court to provide medical evidence that the medical procedure was scheduled in Pakistan on 21 July 2025 (the date of the final hearing) to operate on the subcutaneous lipoma. The applicant failed to provide any such evidence. Thus, I do not accept the applicant’s unverified claim that urgent surgery in Pakistan prevented attendance at the 21 July 2025 hearing. I also find that the medical report (Exhibit 2) does not support the applicant’s contention that he required an operation for a serious medical condition.
The lateness of the application for an adjournment also tended against the grant of an adjournment: Matson v Attorney-General (No 2) [2022] FCA 213 at [6] (Collier J); Dharma v Minister for Home Affairs [2019] FCA 431; (2019) 78 AAR 10 at [37] (Griffiths J); FQV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 225 at [17]-[18] (Stewart J).
Accordingly, in the exercise of my discretion, I find that it is not in the interests of the administration of justice for an adjournment to be granted. Accordingly, I refuse the grant of an adjournment.
DISMISSAL FOR NON-APPEARANCE
At 10:53am on 21 July 2025, the applicant still did not join the Webex meeting to attend the hearing. The Minister sought dismissal of the proceedings pursuant to r 13.06(1)(c) of the Rules, which is to the following effect:
13.06 Default of appearance of a party
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
…
(c) if the absent party is an applicant—dismiss the application.
Given the matters outlined at [18] and [21] of this judgment, I am satisfied that the applicant was aware of the hearing, having sought an adjournment. Accordingly, in all the circumstances, I dismiss the proceedings pursuant to r 13.06(1)(c) of the Rules consequent upon the non-appearance of the applicant.
COSTS
The Minister sought an order that the applicant pay the First Respondent costs and disbursements fixed in the amount of $8,371.30. Given the matter was listed before me for a final hearing, the Minister filed submissions opposing the judicial review grounds and filed a Court Book in these proceedings, which consisted of 147 pages, I am satisfied that costs should follow the event and the amount sought is reasonable.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.
Associate:
Dated: 21 July 2025
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