Liu v Minister for Immigration and Citizenship [2026] FCA 329

(Delivered ex tempore, revised from transcript)

1. This is an application for an extension of time and leave to appeal (leave application) against a decision of the Federal Circuit and Family Court of Australia (Division 2) refusing to reinstate an application for judicial review filed on 16 November 2017 (judicial review application). The judicial review application was dismissed by the Circuit Court on the basis of the applicant's failure to appear at a final hearing on 1 March 2022, pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2. Leave to appeal is required because the Circuit Court's order dismissing an application to reinstate proceedings is interlocutory in nature: Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [3] (Pagone J). An extension of time is required because the leave application was filed eight days after the 14-day period prescribed by r 35.13 of the Federal Court Rules 2011 (Cth).
3. The judicial review application relates to a decision of the then Administrative Appeals Tribunal, which affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa. The Tribunal found that the applicant did not meet the requirements for the partner visas because the applicant's relationship with her sponsor had ceased, and the applicant had not provided the statutory declaration required to make a valid claim of family violence under reg 1.25 of the Migration Regulations 1994 (Cth), that being a mandatory requirement under the regulations.
4. In refusing to reinstate the judicial review application, the Circuit Court accepted the applicant's explanation for her non-attendance at the hearing but held that the grounds pleaded in the judicial review application did not have sufficient prospects of success. The applicant's draft notice of appeal, which was lodged with her leave application on 20 July 2022, advances four grounds of appeal against the latter finding. The applicant has not filed any material explaining her delay in filing the leave application.
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. This explains the lengthy delay between the filing of the leave application, on the one hand, and the listing of the matter for hearing, on the other hand.
6. No address for service has been filed by the applicant or any legal representative for her and as such, it appears that she has not engaged any legal representation on the leave application. The applicant did not file any written submissions in advance of the hearing despite having been afforded that opportunity by orders made by the Registrar.
7. In circumstances where the applicant did not appear at the hearing today, the Minister applied for the leave application to be dismissed summarily (that is, without proceeding to a hearing and determination of the merits) under rule 35.33(1)(a)(i) of the Federal Court Rules for non-appearance and made brief oral submissions in support of that application. The Minister also tendered three emails which I describe in my reasons below.
8. Rule 35.33(1) provides:

(1) If a party is absent when an application under rule 35.12 or 35.14 [being an application for an extension of time to seek leave to appeal] is called on for hearing, any other party may apply to the Court for an order that:

(i) the application be dismissed; or

(ii) the application be adjourned; or

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

...

1. I agree that the leave application should be dismissed under r 35.33(1)(a)(i) by reason of the applicant's failure to attend when the matter was called on today. In reaching this view, I have had regard to a number of factors in addition to the applicant's failure to attend.

(1) The National Migration Team of the Federal Court of Australia wrote to the parties by email on 24 December 2025 advising that the matter was listed for hearing on Monday 23 March 2026 at 10:15am (AEDT) at the Law Courts Building, Queens Square, 184 Phillip Street, Sydney, for up to one hour. 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 also provided a file number and contact details for the Registry of the Federal Court should the applicant need to contact the Court about the matter. The email address to which this email from the Migration Team was sent is the same as the email address provided by the applicant in her leave application.

(3) On 19 February 2026, the solicitors for the Minister wrote to the applicant, also at the email address provided by her in her leave application, which enclosed by way of service a sealed copy of the first respondent's submissions filed on the same date. That email further reminded the applicant that her application was listed for hearing on 23 March 2026 at 10:15am and stated that the hearing was scheduled to take place in person at the Law Courts Building, Queens Square, 184 Phillip Street, Sydney. The email further stated:

You are required to attend the scheduled hearing. If you do not appear, and there is no appearance on your behalf, the first respondent will seek for the application to be dismissed with costs.

(4) On 6 March 2026, the Migration Team wrote to the parties by email, providing a reminder notice which repeated the information in (1) and (2) above. In addition to the respondents' solicitors, that email was sent to the applicant's email address to which I have earlier referred. There is nothing on the Court file indicating that the applicant at any point advised the Court of any change to her email address.

(5) As earlier mentioned, the applicant did not file any written submissions in support of her leave application despite orders by the Registrar made on 25 July 2022 providing that the applicant was to file and serve a written outline of submissions no later than ten business days before the hearing date (being 9 March 2026).

(6) The correspondence on the Court's file with respect to this matter also includes an email dated 20 March 2026 sent at 11:07am to the parties from the NSW Registry. A Microsoft Teams link was provided for the applicant to attend at the hearing if she wished to do so instead of coming to court in person. That email further confirmed that the Court had booked a Mandarin interpreter who would be present in court to interpret for the applicant during the hearing. The signature panel to that email again provided contact details for the NSW Registry of the Federal Court, namely, a telephone number, fax number and email address by which the applicant could contact the Registry should she have any queries.

(7) There has been no response from the applicant to the emails from the Minister's solicitors to which I have referred, or to those from the Federal Court.

(8) When the matter was called on this morning, the applicant was not present in the courtroom or online via the Teams link. As a result, the Court Officer, at my request, called the matter outside the courtroom three times but there was no appearance by the applicant. I then stood the matter down for a short period in order to allow an attempt to be made by the Minister's solicitor, with the assistance of the interpreter, to contact the applicant via the mobile telephone number for her which was provided in her leave application. When the Court resumed, the solicitor for the Minister advised the Court that he called the telephone number twice, but on neither occasion was it answered.

1. I am satisfied in light of the matters set out above that, as the Minister's representative submitted this morning, the applicant had been notified on multiple occasions of the date and time of the hearing, afforded an opportunity to appear remotely, and of the consequences if she did not appear. I also note that, while the Teams link was only provided on the Friday morning before the Monday hearing, the applicant was given contact details by which she could have been in touch with the Court should that have caused a problem for her.
2. Finally, I have had regard to the entitlement of the applicant to apply under r 35.33(2)(a) to set aside the orders made today. That rule provides that:

(2) If a hearing proceeds in a party's absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a) setting aside or varying the order

...

1. 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 applicant's failure to attend the hearing today and the strength of her case on the leave application if the order dismissing the leave application were to be set aside.
2. For these reasons, the leave application should be dismissed under r 35.33(1)(a)(i) of the Federal Court Rules with the applicant to pay the Minister's costs fixed in the amount of $2200 reflecting the work undertaken by the Minister on the matter.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.