Roy v Minister for Immigration and Citizenship [2025] FCA 1371

1. The applicants are citizens of Bangladesh, and comprise a family unit. On 2 May 2016, the first and second applicants applied for a Regional Employee Nomination (Permanent) (Class RN) Subclass 187 visa. On 13 July 2017, the third and fourth applicants (twin daughters) were added to the visa application.
2. By order of Registrar Van Der Westhuizen on 1 April 2021, the first applicant was appointed litigation guardian of his children. That appointment subsists during any appeal (and by corollary leave to appeal) against a decision of the Federal Circuit and Family Court of Australia: BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 1; (2023) 296 FCR 115 at [24].
3. The Tribunal affirmed the decision of the Minister's delegate: (a) refusing to approve the sponsor's nomination application; and, on that basis (b) refusing to grant the applicants the respective visas as the first applicant did not satisfy cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth).

1. At the hearing of the leave application today, the applicants did not appear, including after the Court officer called the matter outside the courtroom.
2. The Minister moved for the leave application to be dismissed on the basis of r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), which permits a respondent to apply to the Court for an order dismissing an application made under (relevantly) r 35.12 of the Rules, being the application for leave to appeal.
3. I consider it in the interests of the administration of justice to exercise the Court's discretion to make the proposed order for the following cumulative reasons.
4. First, the applicants have been made aware of the date and time of the hearing, and of the potential consequences for them of not appearing at the hearing.
5. By email dated 13 October 2025, tendered at the hearing of the application, the Minister's solicitors informed the applicants of the listing and advised them that if they did not appear at the hearing, the Minister may apply to have the matter dismissed for non-appearance, with costs. The applicants did not respond to this email, which was sent to the email address identified by the applicants in the leave application as the email address for service.
6. Second, the applicants have failed to comply with orders of the Court, and to pursue their claim.
7. The applicants did not file any outline of written submissions in advance of the appeal in accordance with the orders I made on 17 October 2025, which extended the orders of Registrar McCormick made on 17 November 2022. The extension was sought by the Minister, whose written outline of submissions was filed and served on 27 October 2025.
8. By email to my associate dated 16 October 2025, in which the first applicant was copied, the Minister's solicitor indicated that they had attempted to contact the first applicant to obtain his consent with respect to the proposed orders, but had received no response. The Court did not receive any response to the email sent to the parties on 17 October 2025 confirming the orders to be made, nor to the subsequent email providing those orders.
9. The Minister's solicitor indicated at the hearing that they have not heard from the applicants since the leave application was filed on 16 November 2022, some two years ago.
10. Third, the leave application filed on 16 November 2022 simply replicates the grounds of the application to the Federal Circuit and Family Court filed on 18 February 2021 (save for one ground which was not pressed), taking issue solely with the Tribunal's findings.
11. The application fails to address the fundamental question of why leave to appeal should be granted from the decision of the primary judge, or to identify any error on the part of the primary judge. The primary judge dismissed the reinstatement application on the basis of what was aptly described as the "fatal flaw" in the application: namely, the lack of an approved nominated employer (primary decision at [22]-[23]). The grounds of the leave application do not address that finding (nor any other finding of the primary judge).
12. By failing to engage with the decision of the primary judge, the application does not permit the Court to examine whether the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration on appeal.
13. This is not a complaint of form. It is an observation of the inability of the grounds of the application to sustain the orders sought, which is a relevant consideration in the exercise of the Court's discretion under r 35.33(1(a)(i), although not determinative.
14. Finally, as a counterbalance, I note that the applicants may apply to the Court for an order setting aside or varying the order dismissing the application, pursuant to r 35.33(2)(a). As a matter of discretion, consideration of such an order will be informed by the reason for failure to attend the hearing today and the strength of the applicants' case on the leave application, and ultimately on appeal.

1. The first respondent seeks its costs of the application, as agreed or taxed. It is appropriate to make such an order in the circumstances I have outlined, and noting the first respondent's preparation of the Court book, which was gratefully concise.
2. The amount should reflect the fact that today's hearing was relatively short; that the applicants have not filed any written submissions, and the first respondent has filed relatively short submissions seeking dismissal of the application, in circumstances where the grounds of the application replicated those before the Federal Circuit and Family Court; and that, while correspondence was sent to the applicants, the first respondent has not received any communications from the applicants since November 2022.
3. Accordingly, I make the following orders:

(1) The leave application be dismissed pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).

(2) The applicants pay the first respondent's costs, as agreed or taxed.

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