Wen v Minister for Immigration and Citizenship [2026] FedCFamC2G 361

1. The first respondent's costs and disbursements, of and incidental to the proceedings,

be fixed in the amount of $5,900 and are to be paid as follows:

a. The applicant to pay the first respondent the amount of $4,400; and

b. The applicant's representative, Mr Nathan Wong of HRL Legal, to pay the

first respondent the amount of $1,500 pursuant to r 32.05 of the Rules.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order for various reasons including where necessary to remedy clerical errors, accidental slips or omissions (r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)).

1. By an application, filed with this Court on 3 January 2023 the applicant seeks review of a decision of the Administrative Appeals Tribunal made on 7 December 2022, in which the Tribunal confirmed the decision of a delegate to refuse to grant the applicant a Subclass 602 Medical Treatment (Visitor) (Class UB) visa.
2. The background to the application, including aspects of the relevant procedural background to this matter, is set out at paragraphs [1] to [17] of the first respondent's written submissions filed 3 March 2026:
   1. By way of an application made on 3 January 2023 under s 476 of the Migration Act 1958 (Cth) (the Act), the applicant seeks judicial review of a decision of the second respondent (the Tribunal) dated 7 December 2022. In that decision the Tribunal confirmed a decision to dismiss the application as a result of the applicant's nonappearance at a scheduled hearing.
   2. On 19 January 2026, the Court ordered that the applicant file and serve any amended application giving complete particulars of each ground of review relied upon, any affidavit evidence to be relied upon, a written outline of submissions and a list of authorities. As at the date of these submissions, the first respondent (the Minister) has not received any such documents.
   3. For the reasons that follow, the Minister submits that there is no error in the Tribunal's decisions and that the application should be dismissed with costs.

1. The applicant is a citizen of the People's Republic of China.
2. On 20 December 2021, the applicant applied for a Medical Treatment (Visitor) (Class UB) (subclass 602) visa (medical treatment visa) (CB 21-30). On the same day, the Department invited the applicant to comment on unfavourable information indicating that he did not intend to comply with visa conditions, was not a genuine temporary entrant and did not have an incentive to depart Australia (CB 41-45) (the natural justice letter).
3. On 23 December 2021, the applicant's representative provided a brief response to the natural justice letter and requested that an extension be provided (CB 46-48). On 24 December 2021, the Department allowed the applicant until 11 January 2022 to provide a response (CB 49).
4. On 11 January 2022, the applicant's representative provided a further response to the natural justice letter with supporting evidence (CB 52-57).
5. On 14 January 2022, a delegate of the Minister (the delegate) refused to grant the applicant a medical treatment visa (CB 63-66).
6. On 30 January 2022, the applicant sought review of the delegate's decision in the Tribunal (CB 67-73). On the application, the applicant appointed a migration agent, Mr Nathan Wong of HRL Legal Australia, as his representative (the applicant's representative) and authorised recipient and provided 'nathan@hrllegal.com.au' as the email address for correspondence (the nominated email address) (CB 71).
7. On 21 October 2022, the Tribunal invited the applicant to appear at an in-person hearing scheduled for 10 November 2022 at 9.30am (CB 90-101). The hearing invitation was sent by way of email to the nominated email address (CB 88).
8. On 8 November 2022, the applicant's representative wrote to the Tribunal advising that the applicant had been infected with COVID-19 and queried whether the hearing could be rescheduled (CB 102). In response, on the same day, the Tribunal wrote to the applicant's representative requesting evidence of the applicant's COVID-19 infection be provided and advising that the Member will consider the postponement request after it was received (CB 105).
9. On 3 and 9 November 2022, the Tribunal sent hearing reminders by SMS to '0416 191 955' (CB 108), being the phone number given by the applicant in his Tribunal application (CB 70).
10. On 10 November 2022, the applicant failed to appear at the scheduled hearing. Consequently, the Tribunal decided to dismiss the application under s 362B(1A)(b) of the Act (CB 119-120) (the dismissal decision). The applicant was notified of the dismissal decision by way of letter sent by email to the nominated email address on the same day (CB 113-116).
11. On 24 November 2022, the applicant's representative wrote to the Tribunal seeking reinstatement of the application (CB 121).
12. On 28 November 2022, the Tribunal advised the applicant's representative that it was prepared to treat the email dated 24 November 2022 as an application for reinstatement (CB 124).
13. On 29 November 2022, the Tribunal advised the applicant's representative that any further evidence that the applicant intended to rely on in support of his reinstatement application should be provided by 5 December 2022 (CB 125).
14. On 7 December 2022, the Tribunal confirmed the decision to dismiss the application (CB 129-132) (the confirmation decision). The applicant was notified of the confirmation decision by way of letter sent by email to the nominated email address on the next day (CB 126-128).

1. Further, the applicant's address for service in this matter is specified in the original application filed with this Court on 3 January 2023 as their representative's nominated HRL Legal email address. Their representative is Mr Nathan Wong (Mr Wong), a solicitor.
2. Orders were made on 19 January 2026, timetabling the matter with a hearing scheduled for 10 March 2026 at 10.15 am. The parties and practitioners were made aware of those Orders by email sent to them by my Chambers on 19 January 2026.
3. On 6 March 2026, Mr Wong emailed the Court seeking leave to file a Notice of Withdrawal as Lawyer that day. The Court reminded Mr Wong that a lawyer proposing to withdraw must comply with r 4.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules) and absent such compliance a lawyer may seek the Court's leave to withdraw by making an application for such leave when the matter is next listed on 10 March 2026.
4. Mr Wong sent further correspondence to the Court that day, attaching an unfiled Notice of Intention to Withdraw as Lawyer dated 25 February 2026. It is curious to this Court why that document was not filed on 25 February 2026. In any case, Mr Wong stated that as he had missed the 7-day period for lodging the Notice of Intention to Withdraw as Lawyer, he intended only to file the Notice of Withdrawal as Lawyer.
5. On 9 March 2026, the Court's Migration Team emailed my Chambers asking whether a Notice of Intention to Withdraw as Lawyer and a Notice of Withdrawal as Lawyer, both lodged 7 March 2026, would be accepted for filing. I refused to accept the documents for filing and noted the email correspondence of 6 March 2026 from my Chambers where Mr Wong was invited to seek leave by appearing when the matter was next listed on 10 March 2026.
6. I can also see that the applicant, via their representative on the record Mr Wong, (whom I note has always been the representative on the record throughout this proceeding), was emailed by the Court on 5 and 6 March 2026, and made aware that in the event there is no appearance by the applicant or on their behalf at the time of any scheduled Court event, the application may be dismissed without further notice and with costs.
7. Further, on 6 March 2026, by an email from the Court, Mr Wong was made aware of the Court's power and procedure to make a costs order against a lawyer in certain circumstances as provided by r 32.05 of the Rules. As Mr Wong was, and remains, the applicant's representative, and I have no information before me to indicate otherwise, I infer that the applicant was also made aware of the Court's power and procedure in the making of a personal costs order against Mr Wong in accordance with r 32.05 of the Rules.
8. I also note the Affidavit of Matthew Kwong-Yu Wong affirmed on 6 March 2026, where the Minister's representatives made Mr Wong aware on 6 March 2026 that the Minister may seek an order that he personally pay the Minister's costs thrown away pursuant to r 32.05 of the Rules should today's hearing be adjourned.
9. At 6.56 am today, Mr Wong sent an email to the Court in which he indicated that he would not attend today's hearing as he had a medical appointment at 9.20 am today. While a mobile phone screenshot of a booking for that appointment was attached to the email, it is not clear from that screenshot when that appointment was made, a matter of import in circumstances where the hearing date and time was made known to Mr Wong on 19 January 2026.
10. I am satisfied that the applicant was made aware of the time, date and location of today's hearing by way of emails sent from the Court to the parties and practitioners, including the applicant's representative to their nominated email address for service, on 5 and 6 March 2026, and by way of the Orders sent by the Court to the parties and practitioners on 19 January 2026.
11. I am also satisfied that the applicant and Mr Wong were made aware that a personal costs order against Mr Wong may be made today pursuant to r 32.05 of the Rules by way of email sent from the Court to the parties, including the applicant's representative to their nominated email address for service, on 6 March 2026.
12. The present time is now 11.03 am and the applicant, or their representative, is still not present in Court.
13. While the Court was only made aware at 6.56 am today that Mr Wong would not attend, there is no indication that the applicant would not attend in circumstances where his representative was unable to attend today's hearing. Therefore, the applicant has, for whatever reason, chosen not to attend.
14. I am further satisfied that the non-attendance has occurred in circumstances where the applicant was put on notice by the Court as to the consequences of a failure to attend.
15. In all of the abovementioned circumstances, I am prepared to dismiss the proceedings pursuant to r 22.04(1)(a)(i) of the Rules consequent upon the non-appearance of the applicant or their representative.
16. The Minister seeks an order that the applicant pay costs fixed in the amount of $ 5,900. It was submitted that this accounts for costs incurred by way of preparation of the Court Book, preparation of written submissions, and preparation for and attendance at final hearing today.
17. I am satisfied that costs should follow the event and that the amount sought is reasonable.
18. In terms of an apportionment of those costs between the applicant and Mr Wong, the Minister seeks that the applicant pay $4,400 and that Mr Wong pay $1,500. The Minister submits that Mr Wong's failure to comply with Orders 2 and 4 of the Orders made on 19 January 2026, along with the late notice Mr Wong gave the Court this morning of his non-attendance at today's hearing, in circumstances where he remained the representative on the record, gives rise to the making of such a costs order against Mr Wong.
19. I am persuaded by that submission, as this hearing has not been able to proceed conveniently because Mr Wong has unreasonably failed to arrange for a proper representative to attend today's hearing, has not made any request for an adjournment of today's hearing and has not complied with Orders 2 and 4 of the Orders made on 19 January 2026.
20. As stated above, Mr Wong and the applicant were made aware of the possibility of a personal costs order being made against Mr Wong by way of the Court's correspondence dated 6 March 2026. On that basis, I am satisfied that Mr Wong and the applicant had notice of the prospect of a costs order being made today pursuant to r 32.05 of the Rules and were thereby given an opportunity to attend today's hearing such that they could avail themselves of a reasonable opportunity to be heard on the issue of costs.
21. I agree with the Minister's submission that, in these circumstances, the Court may proceed to make an order for costs pursuant to r 32.05. On that basis, I will so order the Minister's costs of $5,900 are to be paid in a manner such that Mr Wong pay $1,500 of those costs with the remaining $4,400 to be paid by the applicant.
22. Finally, I also note that the Minister has sought name change orders for the first and second respondent, noting the recent change of the Minister's portfolio to Minister for Immigration and Citizenship and the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth). I will so order.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papdopoulos.