CBX20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 719

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).

1. The matter was listed before me on 19 May 2025 for the final hearing of an application for judicial review filed by the applicant and made under s 476 of the Migration Act 1958 (Cth) (Act). In his application the applicant has sought review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 1 September 2020 which affirmed a decision of a delegate of the First Respondent (delegate) refusing to grant the applicant a Protection (Class XA) visa (Protection visa) under s 65 of the Act.
2. The applicant did not attend the final hearing of his application in this Court on 19 May 2025. For the reasons that follow, the application is dismissed under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).

1. On 8 April 2022, the applicant, a citizen of China, first arrived in Australia on a visitor visa.
2. On 20 January 2016, the applicant returned to Australia on another visit visa, valid until 20 April 2016.
3. From 15 February 2016 and 5 May 2016, the applicant lodged three (3) separate protection visa applications. The Department of Immigration and Border Protection refused all three applications.
4. On 30 June 2016, the applicant lodged a fourth protection visa application, which was granted as valid on 17 October 2016.
5. On 10 January 2017, the applicant attended an interview with a delegate, where it refused to grant the visa on the basis that the applicant did not satisfy s 36 of the Act, and was subsequently not owed any protection obligations under this provision.
6. On 21 February 2017, the applicant lodged an application for review of the delegate's decision with the Tribunal.
7. On 21 April 2020, the Tribunal invited the applicant to appear at a hearing via telephone to give evidence and present arguments.
8. On 22 April 2020, the next day, the Tribunal invited to applicant to comment on information that may be part of the reason for affirming the decision, in accordance with s 424A of the Act, by 6 May 2020. The applicant did not respond to the request.
9. On 12 May 2020, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.

1. On 13 May 2020, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision dated 12 May 2020.
2. On 6 March 2025, a Registrar of this Court made an Order for both the applicants and first respondent to file an amended application (if applicable) in respect to the hearing, written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent lodged their written submissions as required by the Order.
3. On 9 April 2025, the registry sent the parties an email (Exhibit R1) stating the date, time and location of the hearing. The registry sent the email to the applicant at his email address for service in the Application.
4. On 13 May 2025, the Court sent a reminder email to the parties (Exhibit R1), including to the applicant at his email address for service in the Application, informing them of the date, time and location of the hearing.
5. On the same day, the first respondent filed an Affidavit of Service, including correspondence to the applicant about documents required for the hearing (Exhibit R2). The first respondent also sent an email (Exhibit R3) to the applicant at his email address for service. The email again informed the applicant of the date, time and location of the hearing.
6. Prior to the hearing on 19 May 2025, the applicant did not file any written submissions, or any amended application or additional evidence.

1. The hearing on 19 May 2025 commenced at the scheduled time of 10:15 am and concluded at around 10:40 am. The matter was called outside the court room prior to the commencement of the hearing. After the commencement of the hearing, the Court adjourned for approximately 15 minutes to allow the applicant time to appear, in the event that the applicant was running late. At around 10:30 am the Court resumed, and the matter was called outside the courtroom again, with no appearance by the applicant.
2. Ms Ruby Adler from Australian Government Solicitor appeared for the first respondent. At the resumed hearing the first respondent applied for an order under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), dismissing the application on the basis of the applicant's absence from the hearing on 19 May 2025.
3. As was outlined above, on 9 April 2025 and again on 13 May 2025 the applicant was sent emails which notified him of the date, time and location of the hearing. The Court is satisfied that the applicant was aware of the date, time and location of the hearing on 19 May 2025.
4. For the above reasons, at the hearing on 19 May 2025 the Court indicted that it would accede to the first respondent's request to dismiss the matter under r 13.06(1)(c) of the Rules.
5. If an event prevented the applicant from attending the hearing on 19 May 2025 and he is aggrieved that the Application was dismissed in his absence, he may apply to the Court to set aside the dismissal order pursuant to r 17.05 of the Rules. However, if the applicant files an application under r 17.05, he should file an accompanying affidavit which provides evidence explaining the circumstances which prevented him from attending the hearing on 19 May 2025. In the absence of a satisfactory explanation from the applicant, his conduct may raise a question as to whether the Application involved an abuse by the applicant of the process of this Court.
6. If the applicant is genuinely aggrieved that the Application was dismissed in his absence, and he decides to file an application under rule 17.05:

(a) He should also file and serve a written submission which seeks to identify a jurisdictional error in the Tribunal's decision. If the Court is not persuaded that there is a jurisdictional error in the Tribunal's decision, there may be no utility in re-instating the proceeding; and

(b) The Court will endeavour to list the application promptly for hearing. The applicant must attend the hearing.

1. Ms Adler sought an order that the applicant pay the first respondent's costs in the amount of $5,000. The amount sought is less than the scale amount set out in Schedule 1 of the Rules and is less than the first respondent's solicitor/client costs. The Court considers the amount sought for costs by the first respondent to be fair and reasonable given the nature of these types of matters. The Court will make a costs order for this amount.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.