Rokobaro v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 462
•31 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rokobaro v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 462
File number(s): SYG 1094 of 2022 Judgment of: JUDGE KAUR-BAINS Date of judgment: 31 March 2025 Catchwords: MIGRATION – extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal – visitor visa – applicant did not appear at the extension of time hearing – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Legislation: Migration Act 1958 (Cth), s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(c)
Migration Regulations 1994 (Cth), sch 3
Division: Division 2 General Federal Law Number of paragraphs: 15 Date of hearing: 31 March 2025 Applicant: No appearance for the Applicant Solicitor for the First Respondent: Mr M Vethecan of Clayton Utz Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1094 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: APISALOME SARO ROKOBARO
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
31 MARCH 2025
THE COURT ORDERS THAT:
1.The application filed on 28 July 2022 for extension of time 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).
2.The Applicant pay the First Respondent’s costs and disbursements of and incidental to the application 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 Kaur-Bains
On 28 July 2022, the applicant filed a substantive application seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 6 June 2022. Section 477(1) of the Migration Act 1958 (Cth) (Act) required the applicant to make such an application within 35 days of the date of the written decision of the Tribunal. Thus, the applicant was eight days out of time. The applicant, by interlocutory application, requests the Court exercise the power under s 477(2) of the Act to extend the 35-day period to enable the applicant to pursue the substantiative application in this Court.
In the substantive application the applicant gave two reasons for the extension of time. The first was he was not feeling well as he had a cold or flu and did not want to go to a public place. The second reason was he was facing financial difficulties and did not have enough money to pay for any assistance.
The grounds for judicial review were as follows (as per original):
1. The decision of the Tribunal not to grant a visa is unreasonable.
2. The decision of the Tribunal not to grant the applicant to visitor visa (Class FA). The visitor visa (Class FA) refusal was arrived without considering information relevant to the applicant's case, and thereby, the second respondent's decision to affirm, the Delegation's decision was unjustified and unreasonable and was decided without the applicant being provided with due process of law.
Despite orders having been made on 20 December 2024 that the applicant file an amended application properly particularising each ground, affidavit evidence to be relied upon and a written outline of submissions, the applicant has failed to file and serve any of those documents.
The application for an extension was listed before me today at 2pm. I had the matter called three times outside the court room and by 2:25pm the applicant had still failed to appear.
Given the applicant’s non-appearance, the Minister sought an order that the Court dismiss the proceedings pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and sought costs at the scale amount of $4,189.38.
BACKGROUND
The applicant is a citizen of the Republic of Fiji who held a Visitor (Tourist) (subclass 600) visa which ceased on 3 March 2021. On 31 March 2021, the applicant applied for a further visa, being a visitor visa in the tourist stream (Court Book (CB) 3 to 19). A delegate of the Minister refused to grant the said visa, and the applicant sought a merits review of that decision in the Tribunal.
TRIBUNAL’S DECISION
The Tribunal correctly noted, relevantly for the visa the applicant had sought, that cl 600.233 of the Migration Regulations 1994 (Cth) (Regulations) required the Tribunal to be satisfied that if the applicant was in Australia at the time of application and did not hold a substantive visa, the last substantive visa the applicant held was not a Subclass 403 (Temporary Work (International Relations)) or a visa in the Domestic Worker (Diplomatic or Consular) stream, that the applicant had to satisfy sch 3 criteria 3001, 3003, 3004 and 3005 of the Regulations ([7] of the reasons).
The Tribunal noted the correct issue in this case was whether the applicant satisfied sch 3 criteria 3001, 3003, 3004 and 3005 of the Regulations, which applied at the relevant time. The Tribunal found criteria 3001 and 3003 of the Regulations had been met. The issue that arose was whether criterion 3004 of the Regulations was met, which provided as follows:
If the applicant:
(a) ceased to hold a substantive or criminal justice visa on or after l September 1994; or
(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and
(d) there are compelling reasons for granting the visa;
…
Given the applicant had ceased to hold a substantive visa on or after 1 September 1994, criterion 3004 of the Regulations required the Tribunal to be satisfied the applicant was not the holder of a substantive visa due to factors beyond his control. In relation to that, the Tribunal noted the applicant’s explanation, being he was attempting to submit the application for the new visa online, but there was a technical issue, and it was not accepted. The applicant said the issue was to do with payment and he did not have the necessary funds at the time as the payment was more than he expected ([16] of the reasons).
The Tribunal, at [17] of its decision, noted it is the responsibility of visa holders to continue to hold a valid visa in Australia and, in those circumstances, the Tribunal was not satisfied the applicant was not the holder of a substantive visa due to factors beyond his control.
Further, the Tribunal noted the applicant claimed there were compelling reasons for granting the visa, being he was involved in pastoral duties and had been serving in an Aboriginal community in Wilcannia in New South Wales ([18] of the reasons). The Tribunal was not satisfied the continuation of volunteer pastoral work is a compelling reason for the grant of a visitor visa. This is because the applicant’s main reason for wishing to remain in Australia is not in line with the purpose of a visitor visa, which is to visit family and friends or engage in tourist activities.
CONSIDERATION
The Minister relied on the affidavit of service affirmed by Marcus Vethecan, which set out details of the Minister and Court’s interaction with the applicant. From that affidavit, it is clear the applicant was notified of today’s hearing by email from the Court on three occasions, being 20 December 2024, 17 February 2025 and 4 March 2025, to the email address set out in the Notice of Address for Service filed with the Court on 19 May 2023. I am satisfied the applicant was made aware of the time, date and location of today’s hearing. Therefore, I am prepared to dismiss the proceedings pursuant to rule 13.06(1)(c) consequent upon the non-appearance of the applicant.
COSTS
The Minister seeks the applicant pay costs in the amount of $4,189.38, which is the scale amount for proceedings concluded at or before an interlocutory hearing. I am satisfied costs should follow the event and the amount of the costs is reasonable.
CONCLUSION
The application be dismissed for non-appearance and the applicant pay the first respondent’s costs and disbursements in the amount of $4,189.38.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 31 March 2025
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