Bhattarai v Minister for Immigration and Citizenship [2026] FCA 163

Delivered ex tempore, Revised from transcript

1. This is an appeal from the decision of the Federal Circuit and Family Court of Australia delivered on 18 August 2022 in Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673. The appellant has not appeared at the hearing today, and it appears that he has not been in Australia since 6 April 2025.
2. I am informed by the solicitor for the first respondent (the Minister), that the appellant does not seem to have sought to appear by way of audiovisual link or other means. Shortly before the hearing of the appeal, my associate received a purported notice of discontinuance by the appellant, which proposed that the proceedings be discontinued on the basis that there be no order as to costs.
3. The condition as to there being no order as to costs seems to me inappropriate, and I do not see why the Minister should not be awarded costs. Accordingly, the attempt to discontinue the proceedings on that condition must be rejected. As the appellant has failed to attend today's hearing, I have the power under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) to dismiss the appeal.
4. Ordinarily, I am reluctant to take that course in migration matters, given the apparent significance of the matter to the appellant, and my usual preference is to decide the matter on the merits, even though the appellant has not appeared. However, in circumstances where the appellant in the present case wishes to discontinue the proceedings, it seems to me inappropriate to decide the matter on the merits. As I have indicated, it is inappropriate to allow the appellant to discontinue on the basis that there be no order as to costs.
   1. Accordingly, it seems to me the appropriate course is to dismiss the appeal on the ground of the appellant failing to attend today's hearing and award the Minister the costs of the proceedings. The Minister seeks those costs in the lump sum amount of $6000, which seems to me appropriate in the circumstances.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.