DQK19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1021

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 23 September 2019, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 16 September 2019. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection (subclass 866) visa under s 65 of the Act.
2. The applicant did not attend the hearing in this Court on 30 June 2025. For the reasons that follow, the application 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. In December 2015, the applicant, a citizen of China, first arrived in Australia on a visitor visa.
2. On 4 January 2016, the applicant applied for a protection visa. The applicant claimed to fear a real risk of serious harm if he returned to China on the basis of his religion.
3. On 16 September 2016, a delegate of the first respondent, after interviewing the applicant on 15 September 2016, made a decision refusing to grant the visa.
4. On 5 October 2016, the applicant applied to the Tribunal for review of the delegate's decision.
5. On 19 June 2019, the Tribunal invited the applicant to attend a hearing on 8 August 2019.
6. On 8 August 2019, the applicant, assisted by a Mandarin interpreter, appeared before the Tribunal to give evidence and present arguments.
7. On 16 September 2019, the Tribunal made a decision affirming the delegate's decision not to grant the applicant a protection visa.

Judicial review application and steps up to hearing on 30 June 2025

1. On 23 September 2019, the applicant filed in this Court an application for judicial review of the Tribunal's decision which contained the following grounds (as written):

1. The Tribunal did not provide procedural fairness to the applicant.

1. The Tribunal inflexibly applied the country information to the applicant's claims.

2. The Tribunal failed to provide the evidence that the less involvement in Catholic religious activities would be exempted him from being persecuted in China.

3. The Tribunal failed to give reasons of refusing to accept the applicant's evidence with regard to his detention.

5. The Tribunal made its findings without supporting evidence.

1. The applicant recorded in the application his email address for service (Applicant's Email Address) and contact phone number (Applicant's Phone Number).
2. Following a period of inactivity, on 18 March 2025 there was a directions hearing before a registrar of the Court which the applicant attended by telephone, assisted by a Mandarin interpreter. The registrar made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing any amended application giving proper particulars, any affidavit evidence and a written submission. According to a notation on the Court's orders, the applicant "confirmed ... that his email address for service remains unchanged".
3. On 8 May 2025, the registry of the Court sent an email to the parties, including to the applicant at the Applicant's Email Address, stating that the matter was listed for hearing on 30 June 2025. The email included the time and place of the hearing.
4. On 12 June 2025, the first respondent filed a written submission.
5. On 24 June 2025, my associate sent an email to the parties, including to the applicant at the Applicant's Email Address, reminding them of the date, time and place of the hearing.
6. The applicant did not file any further materials before the hearing on 30 June 2025.

1. The hearing on 30 June 2025 commenced at 2:20 pm and concluded shortly after 2:30 pm. The applicant did not appear at the hearing. The matter was called outside the court room prior to the commencement of the hearing. Around 2:15 pm my associate phoned the applicant on the Applicant's Phone Number. The applicant did not answer the call.
2. Siva Valliappan from the Australian Government Solicitor appeared for the first 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 applicant was aware of the date, time and place of the hearing on 30 June 2025. For this reason, at the hearing I agreed to the first respondent's request to dismiss the application under r 13.06(1)(c) of the Rules.

1. If an event prevented the applicant from attending the hearing on 30 June 2025 and he is aggrieved that the application was dismissed in his absence, pursuant to r 17.05 of the Rules, he may apply to the Court to set aside the dismissal order and thereby re-instate the proceeding. If the applicant files and serves an application under r 17.05, he should file and serve an accompanying affidavit which provides evidence explaining the circumstances which prevented him from attending the hearing on 30 June 2025. In the absence of a satisfactory explanation from the applicant, a question may arise as to whether his conduct involves an abuse by the applicant of the process of this Court.
2. If the applicant is genuinely aggrieved that the application was dismissed in his absence and he files an application under r 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 there is a jurisdictional error in the Tribunal'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 applicant must attend the hearing.

1. Mr Valliappan sought an order that the applicant pay the first respondent's costs in the sum of $6,000 which does not exceed the first respondent's solicitor/client costs and is less than the scale amount of $8,371.30. I consider the amount sought is reasonable and will make the order.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.