CDC23 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 204

1. The appellant has liberty to apply, within 14 days of these orders being made, to vary or set aside order 2 by reason of good cause.
2. The appellant is to pay the first respondent's costs fixed in the sum of $4,800.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. In 2018 the appellant applied to the Department of Home Affairs for a Protection (Class XA) (Subclass 866) visa. That application was eventually refused in 2022 after the appellant failed to respond to requests for information made by the Department of Home Affairs. The appellant then sought a review of that decision in the Administrative Appeals Tribunal (AAT). However, the AAT found that it did not have jurisdiction to review the decision. The appellant subsequently applied to the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA) for judicial review of the AAT's decision.
2. The appellant's application to the FCFCOA was made outside the time limit specified in s 477(1) of the Migration Act 1958 (Cth). Accordingly, the appellant required an extension of time under s 477(2). However, the primary judge refused to make an order under s 477(2) to extend time and made an order that the appellant pay the first respondent's costs: CDC23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 574.
3. By a notice of appeal that was accepted for filing on 29 July 2024, the appellant seeks to appeal against that decision. The notice of appeal contains two grounds, which are in the following terms:
   1. Minister For Immigration, Citizenship, and Multicultural Affairs and Administrative Appeals Tribunal, the Federal Circuit and Family Court of Australia did not apply the legal provisions properly to assess my case.
   2. Minister For Immigration, Citizenship, Migration Service and Multicultural Affairs and Administrative Appeals Tribunal, the Federal Circuit and Family Court of Australia was unfairly treated my claims and evidence with wendesbury [sic] unreasonableness.
4. The first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister), filed a notice of objection to competency under r 36.72 of the Federal Court Rules 2011 (Cth). The Minister contends that, pursuant to s 476A(3)(a) of the Migration Act, an appeal cannot be brought to the Federal Court from a judgment of the FCFCOA refusing to make an order under s 477(2) of that Act.
5. On 11 December 2025, the solicitor for the Minister filed an affidavit affirming that, based on the records held by the Department of Home Affairs, the appellant departed from Australia on 16 February 2025 and had not returned.
6. After the proceeding was allocated to my docket on 17 December 2025, my associate sent an email to the parties. The email address that was used for the appellant was the one he provided to the Court when he first filed his notice of appeal. Both the email address and mobile telephone number the appellant provided to the Court are also the same as the email address and mobile telephone number for the appellant in the records held by the Department of Home Affairs that are before the Court.
7. In my associate's email, the parties were advised that the Court was minded to list the matter for a first case management hearing on 22 December 2025. The parties were asked to indicate whether they had any objection to that course of action by no later than 4.00 pm on 18 December 2025. However, the appellant did not respond to that email.
8. The solicitor for the Minister did respond and advised the Court that the Minister had no objection to the listing of the first case management hearing as proposed. The solicitor also advised that he had tried to contact the appellant by mobile telephone using the mobile telephone number provided on the notice of appeal, but that there had been no answer and the telephone call had gone through to voicemail.
9. The Court arranged for a Microsoft Teams link to be provided to the parties by email and a Mandarin interpreter to be present at the first case management hearing. In the event, the appellant did not appear and the hearing was adjourned. However, an order was made at the hearing requiring the Minister to file and serve a written outline of submissions addressing the objection to competency and any other matters concerning the futility of the appeal. Questions about the futility of the appeal were raised because the evidence established that the appellant was not in Australia and did not have a visa to permit his re-entry. This was of significance because one of the criteria that must be satisfied for the grant of the visa that was the subject of the proceedings in the AAT and then in the FCFCOA, a Protection (Class XA) (Subclass 866) visa, was that the 'applicant must be in Australia': cl 866.411 in Sch 2 of the Migration Regulations 1994 (Cth).
10. After the Minister filed submissions on 3 February 2026, my associate wrote to the parties on 25 February 2026 and advised that the Court was minded to list a further case management hearing on either 27 February 2026 or 3 March 2026, and requested advice from the parties about which date was convenient. Although the Minister's solicitor responded and advised that the Ministers representative was available to attend at a case management hearing on either date, the appellant did not respond.
11. The case management hearing was then listed on 3 March 2026.
12. On 27 February 2026, the Minister's solicitor sent an email to my associate, copying in the appellant's email address, in the following relevant terms:

...

Thank you for your email.

If appellant fails to attend Court for the case management hearing is listed at not before 10.00 am AWST Tuesday, 3 March 2026, the Minister will seek that the appeal be dismissed due to the appellant's non-appearance and will seek a costs order against the appellant in a fixed amount. The Minister will rely on this correspondence as putting the appellant on notice of this application.

...

1. Although arrangements were again made for a Mandarin interpreter to attend, the appellant did not attend at the case management hearing on 3 March 2026. Accordingly, counsel for the Minister applied under r 36.74(1)(c) of the Federal Court Rules for an order that the appeal be dismissed for the failure of the appellant to attend at a hearing relating to the appeal. Counsel also sought an order under r 1.34 that compliance with r 36.74(2) be dispensed with, relieving the Minister of the requirement to serve that application on the appellant at the appellant's address for service or personally.
2. There is no question that serious consequences may flow from a decision to dismiss an appeal on the basis that an appellant has failed to attend at a case management hearing. However, the appellant has not communicated with the Court at all since he lodged his notice of appeal on 22 July 2024. In particular, he has not responded to emails sent by my associate seeking his available dates to attend at case management hearings or to emails that were sent to advise the parties of the dates on which those hearings were listed. The Minister's solicitor has also been unable to contact the appellant by telephone, and the appellant failed to respond to an email warning him about the Minister's intention to seek that his appeal be dismissed should he fail to appear at the case management hearing on 3 March 2026.
3. It may be inferred from the appellant's lack of communication with the Court and with the Minister, from his failure to appear at two case management hearings, and from the fact that he departed Australia on 16 February 2025 without a visa, that the appellant has no intention of pursuing his appeal.
4. In all of the circumstances, I am satisfied that it is appropriate to make an order under r 1.34 of the Federal Court Rules, dispensing compliance with r 36.74(2).
5. The case management hearing that was listed to take place on 3 March 2026 was a 'hearing relating to the appeal' for the purposes of r 36.74(1)(c): see, for example, EEP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 793. I am satisfied that the appellant failed to attend at that hearing. Accordingly, an order should be made under r 36.74(1)(c) that the appeal be dismissed for failure by the appellant to attend at the case management hearing on 3 March 2026.
6. Orders should also be made requiring the Minister to send copies of the Court's orders to the appellant's email address and mobile telephone number that appear in the notice of appeal. It is also appropriate to make an order that the appellant has liberty to apply, within 14 days of the orders being made, to vary or set aside the order dismissing the appeal by reason of good cause.
7. The Minister sought an order that the appellant pay its costs of the appeal fixed in the sum of $4,800. I am satisfied that an order in those terms is appropriate.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Vandongen.