FTR18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 874

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. The applicant in this proceeding is a citizen of Malaysia who arrived in Australia on around 13 May 2016 as the holder of a visitor visa, and on 26 July 2016 the applicant applied for a protection (Class XA) (Subclass 866) visa.
2. On 26 October 2016, a delegate of the (then) Minister for Immigration and Border Protection refused the applicant's protection visa application. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there was a real risk that the applicant would suffer significant harm. Accordingly, the delegate was not satisfied the applicant was a person in respect of whom Australia owed protection obligations as set out in sub-ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth)[1] (Act).
3. The applicant then applied for a review of the delegate's decision to the former Administrative Appeals Tribunal (Tribunal). He was invited by the Tribunal to attend a scheduled hearing on 14 September 2018 to give evidence and present arguments in relation to his case. The applicant duly attended the hearing, where he was assisted by a Malay interpreter.
4. On 17 October 2018, the Tribunal determined to affirm the delegate's decision on the basis that there was no real chance the applicant would suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, and like the delegate, the Tribunal was therefore not satisfied the applicant met the criteria in sub-ss36(2)(a) or (aa) of the Act.
5. The applicant applied to this Court for judicial review on 12 November 2018, and in that application set out three grounds of review which need not be recounted, but it may be observed that the grounds appear to quarrel with the merits of the Tribunal's decision rather than identifying some jurisdictional error the Tribunal is said to have made.
6. In that application, the applicant specified an email address for service. The applicant was sent a notice of listing at that address to attend a callover before a Registrar of this Court which was scheduled for 20 November 2024. At that callover hearing, the Registrar made certain orders and noted in those orders that the applicant attended by telephone and was assisted by a Malay interpreter, which indicates that the applicant received the email notice advising them of the callover listing, which also indicates that the email address, at least at that stage, was functioning, and the applicant responded by attending the hearing.
7. On 3 April 2025, the Court's migration team sent the parties a notice of listing to attend the final hearing of the applicant's judicial review application scheduled for 21 May 2025, the hearing now before me. The notice was sent to the applicant's email address as specified in the application, and there was no indication on the Court's file that the email address was not functioning, that is, the Court does not appear to have received any bounce back message or any indication otherwise that the email address is no longer in use.
8. On 14 May 2025, my associates sent an email to the parties, reminding the parties that the hearing was scheduled for 21 May 2025 at 10.00 am. Again, that email was sent to the applicant at the email address specified in the application.
9. The first respondent filed an affidavit of Ms Kristina Lauren Petrovski which was affirmed on 15 May 2025 in which Ms Petrovski, a solicitor employed by the solicitors on record for the first respondent, deposes that she believes that the applicant is no longer in Australia. To that affidavit are annexed some documents which show the applicant's travel history. The affidavit also annexes further correspondence from the first respondent's solicitors to the applicant by email enclosing by way of service a copy of the court book and a reminder that the matter was scheduled for hearing before me. The affidavit material shows that the applicant is no longer in Australia, and it is apparent that the applicant does not currently hold a visa which would allow the applicant to return to Australia.
10. The applicant did not appear at the time scheduled for this hearing to commence. There have been no communications received by the registry or by my chambers indicating that the applicant was unable to attend or that he wished to attend by some other means, for example, by Microsoft Teams. There has been no request by the applicant for an adjournment and no explanation has been provided by the applicant for his failure to attend the scheduled hearing. The applicant did not provide notice to the Court that he was leaving the jurisdiction.
11. When the proceeding commenced, when it was apparent that the applicant had not attended the hearing at the commencement time, I adjourned the proceeding for approximately 20 minutes to enable my associate to endeavour to contact the applicant and to ascertain his whereabouts or to receive an explanation as to his absence. My associate placed three telephone calls to the applicant's mobile phone number. The mobile phone number did not appear to be functioning.
12. My associate also sent the applicant an email to the email address in the application form asking him to make contact as soon as practicable. The email address appears to be functioning in the sense that my chambers has not received, or my associate has not received, any bounce back message. And there has been no contact by the applicant.
13. It is in these circumstances that the first respondent now applies orally for an order dismissing the judicial review application for non-attendance 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).
14. As the chronology that I have set out discloses, I am satisfied that the applicant has been given adequate and proper notice of the scheduled hearing and that the hearing notification, together with the reminder, was sent to an email address that is or was functioning. I am also satisfied the applicant is now offshore, based on the information contained in Ms Petrovski's affidavit, and that he currently does not hold a visa which will allow the applicant to return.
15. Given the applicant's non-attendance, the fact that he is overseas, the fact that he has not sought an adjournment and that he has not sought to be heard by asking the Court to facilitate an alternative means for the conduct of this proceeding, I consider that it is appropriate to make the order that the first respondent seeks.
16. The first respondent also seeks an order for costs in the sum fixed of $5,000.00, and although this matter will be dismissed because of the applicant's failure to attend, the matter is in effect being dismissed at final hearing. The first respondent has prepared a court book and filed written submissions as directed. The first respondent, by his counsel, has attended the hearing before me, and apart from making oral submissions in opposition to the judicial review application, the first respondent has done all that he is required to do to prepare for the finalisation of the matter at the hearing which was scheduled.
17. Given these matters, and given the overall history of this application, I consider that the amount sought by the first respondent, which, it should be noted, is less than the current scale amount for which provision is made for the determination of a matter at final hearing, is both reasonable and appropriate, and so I will order that the applicant pay the first respondent's cost fixed in the sum of $5,000.00.
18. The applicant can apply for this application to be reinstated pursuant to r 17.05(2)(a) of the Rules.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik delivered on 21 May 2025.

[1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.