BYM23 v Minister for Immigration and Citizenship [2025] FCA 1435

Delivered ex tempore, revised from transcript

1. By a notice of appeal filed on 16 January 2025, the appellant seeks to appeal the decision of Judge Coulthard of the Federal Circuit and Family Court of Australia on 13 December 2024, dismissing an application for judicial review of a decision of the (then) Administrative Appeals Tribunal: BYM23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1363 (primary decision). The decision of the Tribunal dated 23 June 2023 affirmed a decision of the Minster's delegate refusing to grant to the appellant a Protection (Class XA) (Subclass 866) visa under s 65 of the Migration Act 1958 (Cth) (Tribunal's decision).

1. The appellant is a citizen of India. He arrived in Australia on 1 March 2014 on a student visa, which was subsequently cancelled on 29 December 2016.
2. On 13 June 2017, the appellant applied for a Protection (Class XA) (Subclass 866) visa. The delegate refused to grant the visa as the delegate was not satisfied that: (a) the appellant was a refugee as defined in s 5H of the Migration Act; or (b) there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to India, there is a real risk that the appellant would suffer significant harm. The delegate concluded that the appellant was not a person in respect of whom Australia has protection obligations pursuant to either paragraphs 36(2)(a) or (aa) of the Migration Act.
3. On 15 May 2019, the appellant applied to the Tribunal for review of the delegate's decision. The appellant was represented in relation to the review and appeared with the appellant at the hearing. On 10 March 2022, the Tribunal affirmed the delegate's decision. However, by consent, the decision was set aside by the Federal Circuit and Family Court of Australia and the matter remitted for reconsideration. On 23 June 2023, a differently constituted Tribunal once again affirmed the decision of the delegate.

1. The appellant claims that the primary judge made an error by finding that the Tribunal "properly considered": (a) all the appellant's claims for a protection visa; and (b) that the appellant's claims were not objectively well-founded.
2. The appellant also claims that the order for costs is "unjust and will do significant harm to [the appellant]".
3. The appellant did not particularise the grounds of appeal, either by way of supporting affidavit, as is sometimes the case, or by way of a written outline of submissions, which was not filed or served, contrary to the directions of Registrar McCormick dated 6 March 2025.

1. At the hearing listed on 19 November 2025, at 10:15 am, the matter was called on by my associate, and then by the Court officer outside the courtroom. There was no appearance from the appellant. The matter was adjourned for a brief period to allow the appellant a further opportunity to attend. When Court resumed, the matter was once again called by the Court officer outside the courtroom. The appellant did not appear.

1. The first respondent then applied to dismiss the appeal for absence of a party under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), which provides:

(1) If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(i) the appeal be dismissed;

...

(2) If a hearing proceeds in a party's absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a) setting aside or varying the order; and

(b) for the further conduct of the hearing.

1. The Court may make an order to dismiss an appeal for failure to appear under s 25(2B)(bb)(ii), which provides:

...

(2B) A single Judge (sitting in Chambers or in open court) or a Full Court may:

...

(bb) make an order that an appeal to the Court be dismissed for:

...

(ii) failure of the appellant to attend a hearing relating to the appeal;

1. I consider that it is in the interests of the administration of justice to exercise the Court's discretion to make the proposed order for the following cumulative reasons.
2. First, the appellant has failed to appear at the hearing of his appeal in circumstances where he was notified of the date and time of the hearing, and of the potential consequences for him of not appearing at the hearing.
3. By email sent on 9 October 2025, at 3.43pm, which was tendered at the hearing by the Minister, the Court's migration team informed the appellant of the date, time, location and duration of today's hearing. The email was sent to the appellant's email address for service, as indicated on the notice of appeal. The Minister's solicitors were copied into the email. The email advised the appellant that if he did not appear at the hearing, orders determining the matter (including an order as to costs) may be made in his absence. No response from the appellant was received by the Court or the Minister.
4. Similarly, on 17 November 2025, at 4:10 pm, the Queensland Registry sent an email to the parties that contained the following:

QUD17/2025 - BYM23 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

I refer to the above matter, which is listed for a final hearing before Justice Younan on Wednesday, 19 November 2025 at 10:15 am. The hearing will be held at the Federal Court's Brisbane Registry, at the Harry Gibbs Commonwealth Law Courts, 119 North Quay, Brisbane QLD 4000.

Please note that orders determining the matter (including an order as to costs) may be made in your absence if you or your lawyer do not attend Court at the specified time.

...

1. In the email from the Registry, the appellant was asked to confirm his intention to appear at today's hearing. No response from the appellant was received, in circumstances where the communication called for a response.
2. I acknowledge that the appellant was assisted by an interpreter before the Tribunal in the Punjabi and English languages when needed (Tribunal's decision at [28]). An interpreter attended today's hearing, but her services were ultimately not required. There is no evidence that the appellant requested an interpreter for the purpose of the hearing.
3. Second, there is nothing to suggest that the appellant intends to pursue his appeal. The last document filed with the Court was in January of this year. There is no evidence that the appellant has responded to any communication from the Court since that time.
4. Coupled with the appellant's non-appearance at the hearing of his appeal, the appellant has failed to comply with a direction of the Court, and to provide a written outline of submissions that expands on his generic claims in the notice of appeal.
5. Third, the grounds of the appeal do not reveal any error on the part of the primary judge.
6. As the Minister correctly submits, the appellant bears the burden of demonstrating that the Tribunal did not consider one (or more) of his claims, and that the Tribunal should have found that his fear of harm was objectively well-founded, and that the primary judge thereby erred in not so finding. The appellant does not meet that burden.
7. The Minister makes a valiant attempt, in the absence of particularisation and an outline of written submissions from the appellant, to engage with the grounds of appeal on the basis that they replicate the grounds of review before the primary judge. This is aside from the complaint about costs. In that regard, the appellant does not describe how it is that the primary judge exercised his discretion to award costs in a manner that was "unjust", as claimed, other than to impugn the impact of the order, which does not in itself reveal any error in the order of costs.
8. The primary judge identified the claims that the appellant says the Tribunal did not consider (at [44]). The primary judge then explains, by reference to the Tribunal's decision, that the Tribunal expressly considered those claims (although in one instance, the primary judge found that the claim as described by the appellant was not put to the Tribunal) (at [46]-[49]). The appellant does not demonstrate any error in the finding that the appellant's claims were considered: see BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 at [10]‑[11].
9. The primary judge correctly identified that the test for determining whether an applicant has a well-founded fear of persecution involves both a subjective and objective assessment of the evidence (primary decision at [55]). The Tribunal accepted that the appellant had a subjective fear of harm, but for reasons provided at [74]-[91] of the Tribunal's decision, it was not satisfied that those fears were well-founded given the lack of corroborative evidence (primary decision at [57]). There is nothing in the Tribunal's reasons in that regard that discloses error, and equally nothing in the primary judge's finding to that effect that reveals appellable error.
10. Finally, I note that an order dismissing an appeal may be set aside on application by the appellant, pursuant to r 36.75(2)(a) of the Federal Court Rules, should there be exceptional circumstances warranting it. The consequence of the proposed order is a relevant factor in the exercise of the Court's discretion. Together with the factors outlined above, the availability of redress (albeit in exceptional circumstances) favours making the proposed order to dismiss the appeal.

1. The first respondent seeks its costs of the application in a fixed amount of $5000, instead of taxed costs, on the basis that the process of obtaining taxed costs would incur further costs. The amount sought was justified on the basis that: (a) it is lower than the prescribed amount in a migration appeal, in item 15.2 of Schedule 3 to the Federal Court Rules (see r 40.43(3)(b) of the Federal Court Rules); and (b) the first respondent prepared and filed the appeal book, prepared and filed an outline of written submissions (that anticipated the argument of the appellant), and otherwise prepared to attend today's hearing.
2. The Court has the power to make such an order under r 40.02 of the Federal Court Rules. It is a broad discretion: BAX16 V Minister for Immigration and Border Protections [2018] FCA 181 at [29].
3. It is appropriate to make an order for costs in favour of the first respondent in the circumstances I have outlined above.
4. In order to avoid further wasted costs, it is appropriate to award a lump sum in the amount of $5000, which I consider to reflect the nature and complexity of the matter, noting that the appellant has not filed any written submissions, and that the generic nature of the grounds of appeal, which were in admittedly "similar terms to the two grounds of review determined by the primary judge", has caused the first respondent to canvass the primary decision broadly to negate the claim of error.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Younan.