Malielegaoi v Minister for Immigration and Citizenship [2026] FCA 171

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

1. On 3 June 2025, the applicant filed an application for an extension of time and an accompanying affidavit. On the same date, the applicant lodged a draft originating application for the review of a migration decision.
2. The application does not identify the decision in respect of which the extension of time is sought, nor the basis upon which the applicant considers that it is in the interests of the administration of justice to make the order sought.
3. However, I accept, as submitted by the first respondent, that by way of the extension of time application, the applicant ultimately seeks judicial review of the decision of the Tribunal to affirm the decision of the delegate of the Minister not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the applicant's visa: Malielegaoi v Minister for Immigration and Multicultural Affairs [2025] ARTA 96 (Tribunal decision). This is to be inferred from the email attachment to the accompanying affidavit, which refers to the Tribunal decision.

1. The Tribunal decision was delivered on 10 February 2025. Under s 477A(1) of the Migration Act, the applicant was required to file an application for review in this Court within 35 days of the date of the decision (i.e., by 17 March 2025). The application for an extension of time was filed on 3 June 2025, with a draft application for review lodged on the same date (i.e., 78 days after the date of the decision).
2. The ground of the application for an extension of time, as set out in the accompanying affidavit, is stated to be "error of law". No further details or particulars are provided in any of the documents filed by the applicant.
3. Further, the applicant has not particularised the grounds of the application either by way of an amended application, or supporting affidavit containing additional evidence, notwithstanding that such an opportunity was afforded by orders of this Court made on 5 September 2025.
4. Nor has the applicant provided any written submissions, contrary to the orders of this Court on 5 September 2025, the timeframe for which was extended by orders made on 12 February 2026, to accommodate the applicant's default.
5. This is significant, not only as a matter of compliance with the orders of the Court, but also as a matter of the determination of the application for an extension of time.
6. As the first respondent submits, the power of the Court to grant an extension of time under s 477A(2) of the Migration Act is predicated on two conditions. The first, relevantly, is that the application specifies why the applicant "considers" that it is necessary in the interests of the administration of justice to make the order sought. The second condition is that the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. The onus naturally falls on the applicant to justify the order sought.
7. As the applicant has not specified why he considers that it is necessary in the interests of the administration of justice to make the order sought, he fails on both fronts. Ultimately, I cannot be satisfied that it is necessary in the interests of the administration of justice to make the order. That conclusion is sufficient to dismiss the application for an extension of time: cf. NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] (in relation to the failure to particularise a ground of review).

1. The applicant failed to appear at the final hearing on 26 February 2026.

1. The first respondent applies to dismiss the proceedings for absence of party under r 30.21(1)(a)(i) of the Federal Court Rules 2011 (Cth).
2. Rule 30.21 provides:

(1) If a party is absent when a proceeding is called on for trial, another party may apply to the Court for an order that:

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

(a) setting aside or varying the order; and

(b) for the further conduct of the proceeding.

1. I note that pursuant to r 30.21(2)(a) of the Federal Court Rules, the applicant may apply to the Court for an order setting aside any order to dismiss the proceeding. However, the disposition of the application for an extension of time makes such an avenue of redress ultimately futile.
2. In the alternative, the first respondent relies on r 5.23(1)(b)(i) of the Federal Court Rules to dismiss the proceeding for non-appearance of the applicant. As O'Bryan J explains in Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479 at [43], r 5.23 provides that if an applicant is in default, a respondent may apply to the Court for an order that the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant. While this rule extends to forms of default beyond a party's non‑appearance at a hearing, it has been applied in circumstances including non-appearance, e.g., Dauguet v Centrelink [2015] FCA 395 (Mortimer J).
3. I note that r 39.05(a) of the Federal Court Rules relevantly provides that the Court may vary or set aside a judgment or order after it has been entered if it was made in the absence of a party. However, as with that form of redress in r 30.21(2)(a) of the Federal Court Rules, this does not affect the order dismissing the application for an extension of time for failure to satisfy the conditions in s 477A(2) of the Migration Act.
4. The power of the Court to dismiss a proceeding for the applicant's default, want of prosecution and/or absence is also found in s 37P of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and other rules of the Court, e.g., rr 35.32 and 35.33 of the Federal Court Rules. However, as the first respondent does not invoke these rules, it is not necessary to engage those additional powers.
5. I note that these rules (including rr 30.21 and 5.23) permit a party to apply to the Court for an order. They do not state that the Court may make the order. That is the corollary of the permission.
6. Furthermore, I note that s 37P(2) of the FCA Act provides the Court with the power to give directions, and in s 37P(5) (and s 37P(6)(a)) the power to dismiss the proceeding for failure to comply with those directions if the Court considers it appropriate to do so. That power does not affect any other power that the Court has apart from those subsections to deal with a party's failure to comply with a direction: s 37P(7) of the FCA Act.
7. I am satisfied that the Court has more than one source of power to make the order sought.

1. On 5 September 2025, this Court made consent orders listing the application for hearing on 26 February 2026 at 10.15am. At the time the consent orders were made, the applicant was represented by pro bono counsel, Mr John-Paul Redmond. Pro bono assistance was arranged for the applicant through the Court's pro bono referral service.
2. On 1 December 2025, Mr Redmond ceased to act for the applicant. The Court was informed that counsel was unable to obtain any instructions from the applicant.

1. The applicant failed to appear at the case management hearings on 3 February 2026 and 12 February 2026.
2. As far as the Court is aware, the applicant resides in New Zealand. This was confirmed by email from the applicant's sister to the first respondent's solicitors on 2 February 2026. Prior to this, on 23 December 2025, the Court's migration team received an email from the applicant in relation to notification of the case management hearing listed on 3 February 2026, which simply stated: "I appear". There is no evidence that any further correspondence has been received from the applicant (or the applicant's sister) since that time.
3. At the case management hearing on 3 February 2026, the matter was called on by my associate, and again by my associate outside the courtroom. There was no appearance by the applicant. In advance of the hearing, on 29 January 2026, the applicant was emailed a Microsoft Teams link by the Court's migration team to join the hearing remotely. The applicant did not appear in person or online.
4. After the case management hearing on 3 February 2026, the registry contacted the applicant by email, attaching the orders made that day, and advising the applicant that the Court had given the first respondent the opportunity to apply to dismiss the proceeding, and that a hearing of this application was listed on 12 February 2026.
5. At the case management hearing on 12 February 2026, the matter was called on by my associate. In advance of the hearing, on 9 February 2026, the applicant was emailed a Microsoft Teams link by the Court's migration team to join the hearing remotely. The applicant did not appear in person or online. The first respondent did not make any dismissal application at that point, for reasons that were later explained at the final hearing on 26 February 2026.
6. The final hearing date was re-iterated in Court orders on 3 and 12 February 2026.
7. At the final hearing listed on 26 February 2026 at 10:15am, the matter was called on by my associate, and then by the Court officer outside the courtroom. There was no appearance by the applicant or on his behalf, either in person or via the Microsoft Teams link.
8. In correspondence, the solicitors for the first respondent informed the applicant on 23 and 25 February 2026 that the matter remained listed at 10.15am on 26 February 2026, and that if the applicant did not attend, the first respondent may seek to have the matter dismissed in the applicant's absence.
9. On 25 February 2026, the Court's migration team circulated to the parties, including the applicant, a Microsoft teams link along with instructions for joining the hearing remotely. The email correspondence requested confirmation that the applicant would be appearing at the hearing. No such confirmation was received in circumstances where the communication called for a response. The applicant was notified in the email that orders determining the matter, including an order for costs and/or an order to dismiss the proceedings, may be made if he did not attend Court at the specified time.

1. As indicated above, the applicant has failed to comply with the Court's orders on 5 September 2025 and 12 February 2026, requiring the applicant to file and serve written submissions in support of his application for an extension of time.

1. The first respondent submits, correctly, that if the applicant does not appear, the trial judge is not required to "embark upon any investigation of the merits of the absent applicant's claim": Pham v University of Queensland [2002] FCA 203 at [26] (Drummond J, with whom Marshall and Finkelstein JJ agreed).
2. It should be understood that the applicant's immediate claim is that an extension of time should be granted in order to bring his untimely review application. It is acknowledged that the purpose of that application - the prospective claim - is to take issue with the Tribunal decision.
3. The first respondent proposed taking the Court through the Tribunal decision, in order to demonstrate that there is no "apparent error" in that decision.
4. In light of my conclusion on the application for an extension of time, it is not necessary for the first respondent to make good that proposition.
5. Moreover, in circumstances where the applicant has not provided any particular grounds of review, I do not consider it appropriate for the Court to provide - what would be - an advisory opinion on the merits of the decision sought to be reviewed.
6. That course is teeming with difficulties. It shifts the burden away from the applicant to positively establish error, and onto the respondent (and the Court) to demonstrate that there is no error.
7. The attempt to negate any "apparent error" does not assist in that regard. The utility of such an opinion is questionable.
8. The proceeding is necessarily delimited by the applicant's grounds of review. It is necessarily so to facilitate the overarching purpose of civil litigation, being the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: s 37M of the FCA Act.
9. Central to that objective is the notion of the 'dispute'. The failure of the applicant to appear or prosecute his claim, in circumstances where the draft originating process does not even indicate the grounds of objection to the Tribunal decision, does not transform the 'dispute' into an holistic objection to that decision. It does not place everything in issue by default. That approach might discourage the provision of particular grounds of review, for in their absence, the review would assume greater scope. I consider that such a course places an intolerable burden on the Court. It should be resisted.

1. The applicant has not satisfied me that it is necessary in the interests of the administration of justice to grant an extension of time by which he may seek judicial review of the Tribunal decision. Accordingly, I dismiss the application.
2. In addition, I consider that it is in the interests of the administration of justice to exercise the Court's discretion to dismiss the proceeding, for the following reasons:

(i) The applicant has failed to appear at the final hearing of his application, despite being notified of the hearing and of the potential consequences of non‑attendance.

(ii) There is nothing to suggest that the applicant intends to pursue his application. The applicant's failure to comply with Court orders and to attend listed hearings, in addition to the missed opportunity to avail himself of pro bono counsel, provides evidence to the contrary.

1. At the final hearing, the first respondent sought an order for costs in a fixed sum, viz., $8,656. This is the maximum amount that may be claimed under item 15.2 of Schedule 3 to the Federal Court Rules, where the application is dismissed after the hearing.
2. The first respondent submitted that this was a reasonable amount for the following reasons:

(i) The first respondent considers it appropriate to brief counsel in such matters, given the serious and complex nature of decisions under s 501CA of the Migration Act.

(ii) Two case management hearings were necessitated by the applicant's non-compliance with Court orders, which required appearances from the first respondent's solicitor.

(iii) An application to dismiss the proceeding was considered, but ultimately not pursued on the basis that the most efficient course, given the proximity of the final hearing in particular, would be to resolve the matter at the hearing.

(iv) There has been a significant amount of correspondence, particularly with the applicant's appointed legal representative, that ultimately did not need to take place.

1. I note also that the first respondent has filed and served written submissions in this matter on 23 February 2026, which have been of assistance to the Court, as well as a bundle of authorities on 25 February 2026. The first respondent was also required to prepare for the final hearing on 26 February 2026.
2. At the hearing, the first respondent tendered the affidavit of Marcus James Vethecan sworn on 26 February 2026, which details the resources allocated to the matter and the professional fees incurred to date. That amount far exceeds the order sought.
3. In the circumstances of the applicant's absence, want of prosecution and default, I consider it appropriate to order costs in a fixed sum, rather than requiring the first respondent to engage in any further process to quantify their costs and achieve practical resolution of this matter: s 43(3)(d) of the FCA Act; r 40.02(b) of the Federal Court Rules. In light of the first respondent's submissions and evidence regarding the work undertaken, as well as the nature of this matter, I consider the amount sought to be modest, and, more importantly, reasonable.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Younan.