Chau v Minister for Immigration and Citizenship [2025] FedCFamC2G 1027

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. On 3 December 2021, the applicants filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of a delegate of the respondent on 27 October 2021. The delegate refused to grant the applicants Business Innovation and Investment (Provisional) (subclass 188) visas under s 65 of the Act.
2. The applicants did not attend the hearing in this Court on 1 July 2025. For the reasons that follow, the application to this Court is dismissed pursuant to 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 18 September 2020, the applicants applied for Business Innovation and Investment (Provisional) (subclass 188) visas. The first applicant (Applicant) was the primary applicant. The second to fourth applicants were members of the Applicant's family unit.
2. On 11 August 2021, the Department of Home Affairs (Department) sent a letter to the Applicant stating that the Applicant may have provided false or misleading information in a material particular in relation to the application, and hence may fail to satisfy Public Interest Criterion (PIC) 4020 in Schedule 4 to the Migration Regulations 1994 (Cth) (Regulations). The letter invited the Applicant to comment on this adverse information.
3. On 6 October 2021, the Applicant, by his lawyer, sent a response to the Department.
4. On 27 October 2021, the delegate refused to grant the applicants the visas on the basis that the Applicant did not satisfy PIC 4020.

Judicial review application and steps up to hearing on 1 July 2025

1. On 3 December 2021, the applicants filed in this Court an application for judicial review of the delegate's decision. The application was prepared by a lawyer who acted for the applicants (Applicants' Lawyer).
2. Following a period of inactivity, on 20 May 2025 the registry of the Court informed the parties that the matter was listed for hearing on 1 July 2025.
3. On 17 June 2025, the respondent filed a written submission.
4. On 18 June 2025, the Applicants' Lawyer lodged a notice of withdrawal of lawyer. The notice provided the applicants' contact details, including email address (Applicants' Email Address), and included a representation by the Applicants' Lawyer that on about 11 June 2025 they informed the applicants of the date, time and place of the hearing.
5. On 19 June 2025, the respondent's solicitor sent an email to the applicants at the Applicants' Email Address reminding them of the date, time and place of the hearing on 1 July 2025 and warning them that, if they did not attend the hearing, the respondent would seek orders from the Court that their application be dismissed with costs.
6. On 23 June 2025, in circumstances where the applicants appeared to reside outside Australia, my chambers sent an email to the applicants at the Applicants' Email Address reminding them of the date, time and place of the hearing on 1 July 2025 and permitting them to appear by video link.
7. The applicants did not file or serve any further materials before the hearing on 1 July 2025.

1. The hearing on 1 July 2025 commenced at 10:15 am and concluded shortly after 10:25 am. The applicants did not appear at the hearing in person or by video link. The matter was called outside the court room prior to the commencement of the hearing.
2. Nicholas Swan of counsel appeared for the respondent. He requested that the application be dismissed under r 13.06(1)(c) of the Rules.
3. Based on materials referred to above, I am satisfied the applicants were aware of the date, time and place of the hearing on 1 July 2025. For this reason, at the hearing I agreed to the respondent's request to dismiss the application under r 13.06(1)(c) of the Rules.

1. If an event prevented the applicants from attending the hearing on 1 July 2025 and they are aggrieved that the application was dismissed in their absence, pursuant to r 17.05 of the Rules, they may apply to the Court to set aside the dismissal order and thereby re-instate the proceeding. If the applicants file and serve an application under r 17.05, they should file and serve an accompanying affidavit which provides evidence explaining the circumstances which prevented them from attending the hearing on 1 July 2025. In the absence of a satisfactory explanation from the applicants, a question may arise as to whether their conduct involves an abuse by the applicants of the process of this Court.
2. If the applicants are genuinely aggrieved that the application was dismissed in their absence and they file an application under r 17.05:

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

(b) The Court will endeavour to list the re-instatement application promptly for hearing. The applicants must attend the hearing.

1. Mr Swan sought an order that the applicants pay the respondent's costs in the sum of $8,371.30, which amount does not exceed the respondent's solicitor/client costs. I consider the amount sought is reasonable. According to information in the Court Book, the third and fourth applicants were born in 2011 and 2012 respectively and are minors. Although I did not raise the issue with Mr Swan at the hearing, it appears appropriate that the costs order be against the first and second applicants only.

I certify that the preceding nineteen (19) numbered paragraph is a true copy of the Reasons for Judgment of Judge Zipser.