AZF23 v Minister for Immigration and Citizenship [2026] FedCFamC2G 499

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).

1. On 17 April 2023, the applicant lodged an application to extend time, pursuant to s 477 of the Migration Act 1958 (Cth) (Act), in which to make an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 1 March 2023.
2. 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).

1. In June 2018, the applicant, a citizen of the People's Republic of China, first arrived in Australia as the holder of a student visa.
2. On 8 April 2021, the applicant lodged an application for a protection visa, claiming to fear harm if he returned to China on the basis of his Christian faith.
3. On 26 October 2022, a delegate of the first respondent refused to grant the visa on the basis that they were not satisfied the applicant was a person in respect of whom Australia has protection obligations under 36(2) of the Act.
4. On 23 November 2022, the applicant applied to the Tribunal for review of the delegate's decision.
5. On 12 December 2022, the Tribunal sent a letter to the applicant's representative expressing the view that the application for review was invalid as it was lodged outside the requisite 28 day time frame to seek review of the delegate's decision, and inviting the applicant to comment.
6. On 8 January 2023, the applicant's representative responded to the invitation to comment from the Tribunal.
7. On 1 March 2023, the Tribunal made a decision that that it did not have jurisdiction to review the delegate's decision as the applicant failed to lodge his application for review within the 28 day prescribed period.

Judicial review application and steps up to hearings in March 2026

1. On 17 April 2023, the applicant lodged an application in this Court seeking judicial review of the Tribunal's decision dated 1 March 2023 (Application). The Application recorded that Zherui Yang was the applicant's solicitor. The Application included an address for service for Ms Yang (Applicant Solicitor Email Address).
2. On 11 October 2023, 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 any amended application giving proper particulars, any additional evidence and a written submission.
3. Following a period of inactivity, on 13 January 2026 the registry of the Court sent an email to the parties, including to Ms Yang at the Applicant Solicitor Email Address, stating that the matter was listed for hearing on 12 March 2026.
4. On 26 February 2026, the first respondent filed a written submission.
5. On 4 March 2026, in circumstances where the applicant had not filed any materials, my Chambers sent the parties an email asking Ms Yang to indicate when the applicant's materials would be filed and served.
6. Following some investigations, it turned out that Ms Yang, also known as Rachel Yang, had changed her email address, but had not filed an updated notice of address for service with the Court. My Chambers then forwarded the notice of listing of hearing to Ms Yang at her current email address.
7. On 11 March 2026, Ms Yang sent an email to my Chambers stating that she had been unable to contact the applicant to ascertain whether he wished to continue to retain Ms Yang to appear at the hearing. Ms Yang added, appropriately, that she would still "attend the Court tomorrow morning and, if required, assist the Court as appropriate".

1. At the hearing in this Court on 12 March 2026, Ms Yang, who continued to be the applicant's solicitor on the record, appeared for the applicant although, as she acknowledged in an email to my Chambers the previous day, she had lost contact with the applicant and so did not know whether the applicant wished to retain Ms Yang to proceed with the hearing. Chuyi Wang from Clayton Utz Lawyers appeared for the first respondent.
2. Following discussion about the way forward, I decided to adjourn the hearing until 26 March 2026. This would give Ms Yang a further opportunity to try to contact the applicant and, if she could not, she could file a notice of withdrawal of lawyer.

1. On 15 March 2026, Ms Yang filed a Notice of Intention to Withdraw as Lawyer which included the last email address and phone number for the applicant known to Ms Yang.
2. On 24 March 2026, Ms Yang filed a Notice of Withdrawal of Lawyer.
3. On 24 March 2026, shortly after Ms Yang filed the Notice of Withdrawal of Lawyer, my Chambers sent an email to the parties, including to the applicant at the email address referred to in the Notice of Intention to Withdraw as Lawyer:

(a) noting Ms Yang had filed a Notice of Withdrawal of Lawyer;

(b) stating that the matter was listed for hearing at 2 pm on 26 March 2026 at the William Street registry of the Court; and

(c) stating that the Application may be dismissed if the applicant did not appear at the hearing.

1. The hearing on 26 March 2026 commenced at 2 pm and concluded shortly after 2:15 pm. The applicant did not appear at the hearing. The matter was called outside the courtroom prior to the commencement of the hearing. Around 2 pm my associate attempted to phone the applicant on the phone number referred to in the Notice of Intention to Withdraw as Lawyer. There was a voice message indicating the phone number was no longer in service.
2. Chuyi Wang from Clayton Utz Lawyers appeared for the first respondent. He requested that the Application be dismissed under r 22.04(1)(a) of the Rules. He tendered an email dated 23 March 2026 from Clayton Utz Lawyers to the applicant at the email address referred to in the Notice of Intention to Withdraw as Lawyer which contained similar information to the email from my Chambers to the applicant referred to in paragraph 21 above.
3. I am satisfied reasonable steps were taken by the Court and the first respondent to notify the applicant of the hearing on 26 March 2026.
4. In the circumstances, I agreed to the first respondent's request to dismiss the Application under r 22.04(1)(a) of the Rules.

1. There is a real possibility that, because Ms Yang lost contact with the applicant after accepting a retainer from him in April 2023, the applicant was not aware of the hearing on 26 March 2026.
2. If the applicant is aggrieved his 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:

(a) the circumstances in which he lost contact with Ms Yang;

(b) the applicant's email addresses and phone numbers between April 2023 and March 2026 and, if he did not update Ms Yang about any changes in his email address or phone number, why he did not update Ms Yang; and

(c) when and how he became aware that his application to this Court was dismissed on 26 March 2026.

1. If the applicant is aggrieved his 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 Tribunal's decision dated 1 March 2023. If the Court is not persuaded there is a jurisdictional error in the Tribunal'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.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Wang sought an order that the applicant pay the first respondent's costs in the amount of $4,533.02, which was about 75% of the first respondent's solicitor/client costs. I consider this amount is reasonable. I stated at the hearing on 26 March 2026 that I would make this order.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.