BTP24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 919
•12 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BTP24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 919
File number(s): SYG 700 of 2024 Judgment of: JUDGE CLEARY Date of judgment: 12 June 2025 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – dismissal for non-appearance – costs ordered. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c), 17.05
Migration Act 1958 (Cth) ss 476, 477
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 12 June 2025 Place: Parramatta Solicitor for the Applicant: No appearance Solicitor for the Respondents: Mr S Knuckey of HBL Ebsworth Lawyers ORDERS
SYG 700 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BTP24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
12 JUNE 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 rule 13.06(1)(c) 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 amount of $4,189.38.
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 CLEARY
INTRODUCTION
The matter was listed before me today, 12 June 2025, for the hearing of an application for an order extending time under s 477(2) of the Migration Act 1958 (Cth) (Act) for the making of a judicial review application in this Court. The application for an order extending time under s 477(2) was made because the judicial review application, which had been filed on 11 April 2025, was filed by the applicant outside the 35-day period in s 477(1) of the Act.
The applicant did not attend the hearing of his application in this Court today, 12 June 2025. For the reasons that follow, the application is dismissed under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
FACTUAL BACKGROUND
On 19 July 2017, the applicant, a citizen of China, first arrived in Australia.
On 7 September 2017, the applicant lodged an application for a protection visa. This application included a nominated email address for correspondence.
On 25 September 2020, the delegate refused to grant the visa. The delegate emailed a copy of their decision to the applicant on the same day.
On 1 November 2023, the applicant lodged an application for review of the delegate’s decision with the Tribunal. This applicant nominated email address for correspondence.
On 15 November 2023, the Tribunal, by letter, informed the applicant that they formed the preliminary view that his application was invalid due to being lodged outside the prescribed time period. He was invited to comment on the validity of his application by 29 November 2023. The applicant did not respond.
On 12 December 2023, the Tribunal concluded that they did not have capacity to review the applicant’s application. A copy of the decision record was sent to the email address provided with his application for review.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 11 April 2024, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. It contained an application for an extension of time under s 477(2) as it had not been made within the 35 days of the Tribunal’s decision.
On 19 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.
On 24 April 2025, the proceedings were docketed to me, and the application for an extension time was set down before me for hearing on 12 June 2025. That same day, a notice of listing email was sent to the applicant, informing him of the date, time and location of the hearing (Exhibit R1).
On 7 March 2025, the first respondent sent a further reminder email to the applicant, informing him that if he did not appear, the first respondent may seek orders that his application be dismissed with costs (Exhibit R3). Several other emails followed informing the applicant of the date, time and location of the hearing, including a notice of the filing of written submissions by the first respondent on 29 May 2025 (Exhibit R3) and a reminder of listing from the Court on 2 June 2025 (Exhibit R2).
The applicant has not filed any written submissions, any amended application or additional evidence.
Hearing on 12 June 2025
The hearing on 12 June 2025 commenced at the scheduled time of 10:15 am and concluded at approximately 10:40 am. The matter was called outside the Court prior to the commencement of the hearing. After the commencement of the hearing, the Court adjourned for approximately 15 minutes to allow the applicant time to appear, in the event that the applicant was running late. At 10:30 am the Court resumed, and the matter was called outside the Court again. There was no appearance by the applicant.
Mr Knuckey from HWL Ebsworth Lawyers appeared for the first respondent. At the resumed hearing the first respondent made an application for an order under r 13.06(1)(c) of Rules, dismissing the application on the basis of the applicant’s absence from the hearing on 10 June 2025.
As was outlined above, on 24 April 2025 and again on 7 March 2025, 29 May 2025 and 2 June 2025, the applicant was sent emails which notified him of the date, time and location of the hearing. The Court is satisfied that the applicant was aware of the date, time and location of the hearing today, 12 June 2025, and was also aware of the consequences of not appearing today, namely that the application would be dismissed with an order for costs.
For these reasons, I will make the order for dismissal sought by the first respondent under r 13.06(1)(c) of the Rules.
If an event prevented the applicant from attending the hearing on 12 June 2025 and he is aggrieved that the application was dismissed in his absence, he may apply to the Court to set aside the dismissal order pursuant to r 17.05 of the Rules. However, if the applicant files an application under r 17.05, he should file an accompanying affidavit which provides evidence explaining the circumstances which prevented him from attending the hearing on 12 June 2025. In the absence of a satisfactory explanation from the applicant, his conduct may raise a question as to whether the Application involved an abuse by the applicant of the process of this Court.
If the applicant is genuinely aggrieved that the Application was dismissed in his absence, and he decides to file an application under r 17.05:
(a)He should also file and serve a written submission which seeks to identify a jurisdictional error in the Tribunal’s decision. If the Court is not persuaded that there is a jurisdictional error in the Tribunal’s decision, there may be no utility in re-instating the proceeding; and
(b)The Court will endeavour to list the application promptly for hearing. The applicant must attend the hearing.
COSTS
Mr Knuckey sought an order that the applicant pay the first respondent’s costs in the amount of $4,189.38. The amount sought is less than the scale amount set out in Schedule 1 of the Rules. The Court considers the amount sought for costs by the first respondent to be fair and reasonable given the nature of these types of matters. The Court will make a costs order for the amount sought.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 12 June 2025
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