BYA24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1678

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. This matter was listed before the Court for hearing of the extension of time application in the Perth Registry at 10.00am AWST on 13 October 2025. When the matter commenced, there was no appearance by or on behalf of the applicant.
2. In the circumstances, the Court made the following orders:

(1) The name of the first respondent be amended to read 'Minister for Immigration and Citizenship'.

(2) The application for an extension of time be dismissed for non-appearance pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

(3) The applicant pay the first respondent's costs fixed in the sum of $3,750.

1. The following reasons explain why the Court dismissed the matter for non-appearance pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (the Rules).

1. Before the Court is an application for an extension of time filed in the Perth Registry of this Court on 14 April 2024 (the application). That application was accompanied by an affidavit which was affirmed by the applicant on the same date.
2. The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). By that application, the applicant sought review of a decision made by the Administrative Appeals Tribunal (the Tribunal) on 29 September 2023. In that decision, the Tribunal confirmed its earlier decision to dismiss the applicant's application for review. The Tribunal's decision is set out in full as follows:

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 August 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. On 12 September 2023 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3. The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

4. As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.

DECISION

1. The Tribunal confirms the decision to dismiss the application.

1. The applicant was entitled to seek judicial review of the Tribunal's decision pursuant to s 477 of the Act. Any such application was to be made within 35 days of the Tribunal's decision dated 29 September 2023 in accordance with s 477(1) of the Act. However, as observed above, the applicant did not file an application until 14 April 2024, which was significantly outside of the period set out in s 477(1) of the Act.
2. On 29 December 2024, the parties were notified by email that the application for an extension of time had been listed for hearing before Judge Kendall on 6 March 2025.
3. On 24 February 2025, parties were advised that the hearing on 6 March 2025 had been vacated due to a change in judicial availability and re-listed for hearing on 13 August 2025. On 22 April 2025, the matter was again re-listed for hearing on 9 July 2025.
4. On 2 July 2025, parties were again advised that the hearing scheduled for 9 July 2025 had been vacated and would be re-listed in due course.
5. On 15 August 2025, the matter was transferred to the docket of Judge Gerrard and re-listed for hearing of the extension of time application on 13 October 2025 in the Perth Registry of the Court. On each of the above occasions, parties were notified via email of the relevant listing details.
6. When the matter came before the Court on 13 October 2025, the applicant was not present in the courtroom. Ms Ismailjee appeared as counsel on behalf of the first respondent (the Minister). My associate made three unsuccessful attempts to contact the applicant by the telephone number provided within the applicant's application to the Court. My associate then called the applicant's pseudonym three times within the precincts of the courtroom. The applicant failed to appear and otherwise had not made any contact with the Court to explain their non-attendance.
7. In those circumstances, counsel for the Minister applied to have the matter dismissed for non-appearance pursuant to r 22.04(1)(a)(i) of the Rules. Counsel also sought that the applicant pay the Minister's costs, fixed in the sum of $3,750.
8. In support of that application, Ms Ismailjee sought to rely on the affidavit of Benjamin Mayne affirmed on 24 February 2025 and filed on 6 March 2025. Annexed to that affidavit was correspondence from the Minister to the applicant dated 17 February 2025 which put the applicant on notice that, should he fail to appear at that scheduled hearing, the Minister may seek to have his matter dismissed with costs. Although that correspondence referred to an earlier listing date of 6 March 2025 which was subsequently vacated and re-listed, Ms Ismailjee submitted that the applicant was appropriately on notice of the consequences of failing to appear at a court hearing.
9. Ms Ismailjee also sought to rely upon the email from my associate dated 15 August 2025 which advised that the matter had been listed for hearing of the extension of time application on 13 October 2025 and that attendance was required in person at the Perth Registry.
10. Noting the history of this matter and the correspondence from the Court, the Court was satisfied that the applicant had been properly notified of the date and time of today's hearing. In light of the enquiries made, the Court was satisfied that the applicant did not appear at the hearing at the designated time.
11. In respect of the costs order sought on behalf of the Minister, the Court was satisfied that the amount sought was appropriate in the circumstances, noting that it is below the scale amount for a matter concluded after the first court date, and at or before an interlocutory hearing, as set out in Schedule 2, Part 2, Division 2 of the Rules. The Minister had effectively prepared for a hearing of the extension of time application. The Minister had filed a Court Book and written submissions, and Ms Ismailjee was prepared to make oral submissions today.

1. In the circumstances, the Court made orders to dismiss the matter for non-appearance and award costs to the Minister, as outlined at [2] above.
2. The Court notes that the applicant can apply to have his application reinstated pursuant to r 24.04(a) of the Rules.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.