DND18 v Minister for Immigration and Citizenship [2026] FCA 293

1. This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA): DND18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 553 (J). The primary judge dismissed an application for review of a decision of the former Administrative Appeals Tribunal, which affirmed a decision not to grant the Appellants protection visas.
2. At the hearing on 18 March 2026, I made orders dismissing the appeal for non-appearance, under r 36.75(1) of the Federal Court Rules 2011 (Cth), with costs. These are the reasons for making those orders.

1. Appellants arrival in Australia (2012): The Appellants are female citizens of Malaysia, of Chinese Malaysian ethnicity, who claimed to fear harm for reasons that included that they are lesbians who had been threatened with rape (J [2]). They arrived in Australia in 2012 on temporary electronic travel visas, some months apart (J [4]).
2. Application for protection visas (Jun 2015): In June 2015, the First Appellant applied for a protection visa, and named the Second Appellant as her partner who was not raising her own claim for protection (J [5]).
3. Delegate refuses application (Nov 2015): On 13 November 2015, a delegate of the First Respondent (the Minister) refused the application (J [6]). On 30 November 2015, the Appellants applied to the Tribunal for merits review of that decision.
4. Tribunal affirms decision (Jun 2018): On 22 June 2018, the Tribunal affirmed the delegate's decision (J [7]). Relevantly to this appeal, the Tribunal at [55] of its decision referred to the Second Appellant's claim that the Appellants had tried holding hands in the park but someone said they would call the police, before noting that:

...Malaysia is a more conservative country and public displays of affection are discouraged including from heterosexual couples and the Tribunal is not satisfied that the more conservative social environment and attitudes towards lesbians in Malaysia will result in serious harm to the applicant.

1. Application for judicial review (Jul 2018; Apr 2022): On 6 July 2018, the Appellants sought judicial review of the Tribunal's decision in the FCFCOA. They filed an amended application on 20 April 2022. Ground 3 of the amended application was as follows (J [23]):
   1. The Second Respondent [ie the Tribunal] committed jurisdictional error by identifying a wrong issue and asking a wrong question.

Particulars

The Second Respondent considered at [55] whether the Applicants might avoid harm by behaving more discreetly, when it ought to have considered whether the need for the Applicants to modify their behaviour, and the consequences of failure to do so, amounts to persecution or relevant harm.

1. FCFCOA dismisses application (Jun 2023): On 27 June 2023, the primary judge dismissed the application for judicial review. The primary judge rejected ground 3 above, and found that the present case was distinguishable from S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (J [78]-[81]).
2. Appeal to this Court (Jul 2023): The Appellants filed a notice of appeal dated 20 July 2023. The ground of appeal is as follows:
   1. The court erred in failing to find that the Second Respondent's decision was affected by jurisdictional error, because the Second Respondent identified a wrong issue and/or asked a wrong question.

Particulars

1. At first instance, the Appellants relied upon the ground that the Second Respondent fell into jurisdictional error by identifying a wrong issue or asking a wrong question. This was because the Second Respondent considered whether the Appellants - who are lesbians in a same-sex relationship - might avoid persecution by behaving more discreetly: see AAT at [55].
2. In doing so, the Second Respondent contravened the ratio in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473: see at [43] (McHugh and Kirby JJ) and [88] (Gummow and Hayne JJ). S395 required that the Second Respondent consider whether the Appellants' modified behaviour was itself influenced by the threat of persecutory harm.
3. The learned primary judge concluded that the Second Respondent had not found (or assumed) that the Appellants modified their behaviour to avoid persecution for reason of their sexual orientation: see Judgment at [78]. Instead, the learned primary judge ought to have concluded that the Second Respondent found (or assumed) that the Appellants had done so. Accordingly, the learned primary judge ought to have concluded that the ratio in S395 applied.
4. Further or alternatively, the learned primary judge distinguished the facts from those considered in S395, on the basis that the Second Respondent "... did not expressly find that it was not possible for [the Appellants] to live openly as female lesbians or as [sic] couple in Malaysia": Judgment at [79]. Instead, the learned primary judge ought to have concluded that the facts, as found by the Second Respondent, were relevantly indistinguishable. Accordingly, the learned primary judge ought to have concluded that the ratio in S395 applied.

1. This notice of appeal was filed by Holding Redlich, who acted for the Appellants before the primary judge.
2. Substituted service of intention to cease to act (Feb 2026): In February 2026, Holding Redlich sought orders permitting substituted service on the Appellants outside Australia of a notice of intention to cease to act. On 19 February 2026, I granted Holding Redlich leave to serve the notice of intention to cease to act on the Appellants by email and by Facebook Messenger.
   • Affidavit evidence filed in support of the application established that Holding Redlich made multiple unsuccessful attempts between late December 2025 and early February 2026 to contact the Appellants by email, by calling and sending text messages to the Appellants' Australian mobile telephone numbers, and by sending messages to the Appellants' Facebook profiles. Affidavit evidence filed on behalf of the Minister established that the Appellants had left Australia in October 2024, and as at February 2026 did not hold visas that would permit them to enter Australia.
   • In those circumstances, I was satisfied that it was not practicable within r 10.24 to serve the Appellants with the notice by the usual methods of service provided for by the Rules, because Holding Redlich did not have a current postal address for the Appellants, and could not reasonably obtain that address.
   • The Court requested that Holding Redlich, as part of serving the notice of intention to cease to act on the Appellants, inform the Appellants that their appeal would be heard on 18 March 2026.
3. Holding Redlich filed a notice of ceasing to act on 2 March 2026.
4. Hearing (Mar 2026): The Court held a hearing of the appeal on 18 March 2026. The Appellants did not appear. The Minister applied for the appeal to be dismissed under r 36.75. The Minister's counsel advised that they had had no contact from either the Appellants or Holding Redlich about the appeal.
5. The Minister's counsel also advised that the Minister's lawyers had emailed the appeal book using the First Appellant's email address (that was used to serve the notice of intention to cease to act), and that this email stated that the appeal would be heard in Melbourne on 18 March 2026. After the hearing, the Minister filed an affidavit from Mr Shaun James of Sparke Helmore that (relevantly) attached a copy of the email dated 26 February 2026 sent to the First Appellant's last known email address. That email attached a letter from the Minister's solicitors containing the same information about the time and place of the hearing of the appeal.

1. Options for dealing with appeal: As set out above, the Appellants have not taken any steps to advance this appeal since the notice of appeal was filed by their then lawyers in July 2023: they did not respond to communications from Holding Redlich between December 2025 and February 2026; they have not filed any written submissions; they have not sought to contact chambers; and they did not appear at the hearing. On the evidence before me, there would be no point adjourning the appeal, because the Appellants have left Australia and it does not appear that they would be any more likely to attend any future hearing.
2. In these circumstances, there were three possible ways of dealing with the appeal:

(1) Dismiss the appeal for non-appearance, under r 36.75(1) of the Rules;

(2) Dismiss the appeal on the basis that any relief would be futile, because the evidence is that the Appellants are currently outside Australia and without any right to enter, and a protection visa can only be granted to a non-citizen "in Australia" (see Migration Act 1958 (Cth) s 36(2); Migration Regulations 1994 (Cth), Sch 2 cl 866.411);

(3) Determine the substance of the ground raised in the Appellants' notice of appeal.

1. Dismissing for non-appearance (r 36.75): Rule 36.75(1) confers power on the Court to dismiss an appeal if (relevantly) the appellant does not appear. If an order is made in a party's absence, the party may apply to have the order set aside or varied (r 36.75(2)). Before deciding to dismiss an appeal for non-appearance, the Court would need to be satisfied that the appellant has been notified of the hearing date (or at least that every reasonable step has been taken to do so): see BYM23 v Minister for Immigration and Citizenship [2025] FCA 1435 at [12]- [16] (Younan J); AYE15 v Minister for Immigration and Border Protection [2016] FCA 1517 at [6]- [9], [11](4)-(5) (Perry J). The Court would also consider matters such as whether there is any explanation for the non-appearance; and whether the appeal raises any arguable point: see Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 364 at [5] (O'Bryan J); and whether the appellant has taken any step to advance the appeal, apart from filing a notice of appeal: see Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 6 at [3] (the Court). The Court also has regard to the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth): SZMIU v Minister for Immigration and Citizenship [2012] FCA 179 at [35] (Murphy J).
2. In AYE15, Perry J dismissed an appeal under r 36.75, in circumstances where the evidence was that the appellant had departed Australia shortly before the hearing date. The appellant in that case had not responded to several attempts by registry to contact the appellant at the postal and email addresses and telephone numbers provided by him: AYE15 at [9], [11](4) and (6).
3. In ADF17 v Minister for Immigration and Multicultural Affairs [2025] FCA 453, Wigney J dismissed an application for an extension of time to appeal for non-appearance, in circumstances where (like this case) the appellant in that case had departed Australia and had not returned, and did not hold any visa that would allow her to return to Australia. His Honour stated (ADF17 at [13]):

I am inclined in all circumstances to dismiss the applicant's application due to her non-appearance. She has left Australia, and there is no basis for finding that she can or will return. She was appropriately advised of the hearing date by both emails sent to her nominated email address and a telephone call to her nominated telephone number. She did not respond to either the emails or telephone call. Her failure to appear, at least via video link, is unexplained. There is no indication that the applicant has made any attempt to pursue her application.

1. In both AYE15 and ADF17, the Court did not rule on the substance of the appeal, but the lack of apparent merit in the appeal grounds was a factor that supported making an order under r 36.75: AYE15 at [11](8), [13]; ADF17 at [14], [18].
2. Appeal should be dismissed under r 36.75: I was satisfied that it is appropriate to dismiss this appeal under r 36.75(1) of the Rules, relying on AYE15 and ADF17.
3. The evidence is that the Appellants have left Australia and do not currently have any visa that would allow them to enter Australia. Holding Redlich sent correspondence to an email address for the First Appellant, and via Facebook Messenger, which advised the Appellants of the hearing date of 18 March 2026. The Minister's lawyers also sent the Appellants an email, attaching the appeal book, which advised them of the hearing date: see [14] above. Unlike ADF17, the Appellants have not been sent correspondence containing a "Teams" link, which could have allowed them to appear at the hearing via video link. But I regard that fact as providing a further reason for dismissing the appeal under r 36.75 in that case, rather than being a necessary requirement. As noted, the Appellants have not taken any steps to advance their appeal, after the notice of appeal was filed by their then lawyers in July 2023. Further, it would appear that the relief sought in the appeal would now be futile, because protection visas can only be granted to non-citizens who are in Australia.
4. I note that the Appellants may apply under r 36.75(2) to set aside the orders. Whether or not any such application succeeds will depend upon an exercise of discretion. 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: see AYE15 at [14]; Alsaidat v Minister for Immigration and Citizenship [2026] FCA 272 at [10] (Perry J).

1. For these reasons, I dismissed the appeal for the non-appearance of the Appellants, under r 36.75(1) of the Rules.
2. Costs: The Minister sought costs fixed in the sum of $5,489. The Court has a broad discretion whether to make a fixed sum costs order: BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29] (Griffiths J); Federal Court of Australia Act 1976 (Cth) s 43(3)(d); Rules r 40.02(b). In the case of proceedings to challenge migration decisions, the Rules set out an amount that may be claimed if an appeal is discontinued before hearing (currently $5,489), and a higher amount that may be claimed if an appeal is dismissed after hearing (currently $8,656): see Rules r 40.43, Sch 3 items 15.1 and 15.2. The Court must be satisfied that the amount of costs is reasonable and proportionate to the nature and complexity of the case, and may award a lesser amount: see Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288 at [18] (Kenny J); Vedantam v Minister for Immigration and Multicultural Affairs [2025] FCA 179 at [13]- [15] (Dowling J). Here, the Minister is, in effect, seeking costs on the same basis as if the matter had been dismissed without a hearing. That approach is reasonable and proportionate, given the relatively straightforward nature of the appeal.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hill.