CMY18 v Minister for Immigration and Citizenship [2025] FCA 1378

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

(Delivered ex tempore, revised from transcript)

1. This is an appeal against a decision of the Federal Circuit and Family Court of Australia (Division 2) refusing to set aside a decision of the Immigration Assessment Authority, which affirmed a decision of a delegate of the Minister not to grant the appellants Safe Haven Enterprise Visas.
2. The four appellants are nationals of Sri Lanka and identify as Christian Tamils. The first and second appellants are husband and wife. The third appellant is their son and is a minor. The fourth appellant is a member of their family and was a minor at the time of the visa application in 2017. The third and fourth appellants did not raise their own claims for protection.
3. The appellants were represented by counsel before the primary judge.
4. By a notice of appeal filed on 22 October 2021, the appellants advance one ground of appeal, namely, that the Authority's failure to be satisfied that new information provided by the first appellant was "credible", for the purposes of s 473DD(b)(ii) of the Migration Act 1958 (Cth), was legally unreasonable.
5. I note that this matter was part of the cohort or backlog of appellate cases created by restrictions on in-person hearings in 2020 and 2021 as a result of the COVID-19 pandemic.
6. No address for service has been filed by any legal representative for the appellants and as such, it appears they have not engaged legal representation on the appeal. The appellants did not file any written submissions in advance of the appeal despite having been afforded that opportunity by orders made by the Registrar, as I shortly explain.
7. In circumstances where the appellants did not appear at the hearing today, the Minister applied for the appeal to be dismissed under rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) for non-appearance and made brief oral submissions in support of that application. In addition, the solicitor for the Minister tendered a bundle of correspondence, the contents of which are identified below.
8. Rule 36.75(1)(a)(i) 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; or

(ii) the hearing be adjourned; or

(iii) the hearing proceed only if specified steps are taken;

...

1. I agree that the appeal should be dismissed under r 36.75(1)(a)(i) by reason of the appellants' failure to attend when the appeal was called on today. In reaching this view, I have had regard to a number of factors in addition to the appellants' failure to attend.

(1) The National Migration Team of the Federal Court of Australia wrote to the parties by email on 30 September 2025 advising that the appeal was listed for hearing on Tuesday 11 November 2025 at 10:15am (AEDT) at the Law Courts Building, Queens Square, 184 Phillip Street, Sydney for half a day. The email also advised that the courtroom allocated for the matter would be displayed on a noticeboard at the Federal Court on the day of the hearing, or would be available on the daily court list from late in the afternoon the day before the hearing. The email further stated:

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.

(2) The email address to which the email from the Migration Team was addressed is the same as the email address provided by the appellants in their notice of appeal.

(3) On 14 October 2025, the Minister served his submissions and joint list of authorities to the email address provided by the appellants in the notice of appeal. In the covering email, the Minister also explained that the hearing is scheduled for 11 November 2025 at 10:15am before me and provided the address for the Federal Court. The email also advised that if the appellants did not attend in person or through a lawyer, the Minister's legal representatives were instructed to seek dismissal of their appeal and seek an order for costs.

(4) On 16 October 2025, the solicitor for the Minister wrote again by email to the appellants attaching a sealed version of the appeal book, a hyperlinked version of the appeal book, and an amended version of the Minister's submissions. In the email the solicitor for the Minister also explained that if the appellants had any questions or needed anything further, they should let the Minister's solicitors know. Contact details for the Minister's solicitors were included including telephone numbers and the address for the Minister's solicitors. Also on 16 October 2025, a download link to the appeal book was separately sent by the Minister's solicitors to the appellants via email.

(5) The appellants did not file any written submissions in support of their appeal despite orders by the Registrar made on 26 October 2021 providing that the appellants are to file and serve a written outline of submissions no later than ten business days before the hearing date (being 27 October 2025).

(6) On 10 November 2025, the solicitors for the Minister emailed the appellants again to remind them of the hearing. The original email from the Migration Team at the Federal Court dated 30 September 2025 advising of the details of the hearing today was included.

(7) There has been no response from the appellants to the emails from the Minister set out above or to those from the Federal Court.

(8) When the appeal was called on this morning, the Associate called the matter outside the courtroom three times but there was no appearance by the appellants. I then stood the matter down for 15 minutes in order to allow further attempts to be made to contact the appellants and to allow them extra time to appear in case they had been delayed. The Minister's solicitor telephoned the appellants during the brief adjournment on the mobile telephone number provided in the Notice of Appeal, but upon doing so, heard a message that the number had been disconnected.

1. Finally, I have had regard to the entitlement of the appellants to apply under r 36.75(2) to set aside the orders made today. Whether or not any such application succeeds will depend upon an exercise of discretion. I note that relevant considerations to the exercise of that discretion include whether there is an acceptable explanation for the appellants' failure to attend the hearing today and the strength of their case on the appeal if the order dismissing the appeal were to be set aside.
2. For these reasons, the appeal should be dismissed under r 36.75(1)(a)(i) of the Federal Court Rules. In addition, the Minister applied for his costs in defending the appeal to be paid by the first, second and fourth appellants in a fixed sum. I made timetabling orders allowing the Minister to provide evidence in support of his application for a fixed sum costs order, and for the appellants to advise as to whether they seek to challenge the fixed sum costs order sought by the Minister.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.