Federal Court of Australia

Lal v Minister for Immigration and Citizenship [2026] FCAFC 119

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed under rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).

2.    The Appellant pay the First Respondent’s costs of the appeal, to be fixed on a lump sum basis by a Registrar in accordance with GPN-Costs.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

THE COURT:

1    The Appellant in these proceedings filed a notice of appeal on 2 December 2025. At that stage he was represented by solicitors. The appeal sought to challenge the whole of the judgment Lal v Minister for Immigration and Citizenship [2025] FCA 1396.

2    On 4 May 2026, the National Migration Team of the Court provided a notice of listing for the hearing of this appeal. That listing was for today, 26 August 2026, at 10.15 am. This was sent to the solicitors on the record for the Appellant, as well as the solicitors for the First Respondent (Minister).

3    On 12 May 2026, the Appellant’s then solicitors filed a notice of intention to cease to act; this was also served on the solicitors for the Minister by email. That email recorded that Mr Lal had agreed to voluntary removal from Australia, and that he may brief counsel and continue with this matter when he arrives in Fiji.

4    Relevantly, on 16 June 2026, the solicitors for the Minister also emailed the Appellant advising of the listing of his appeal for today. This email was sent to the Appellant’s email address, which the Appellant has directly responded to and has been consistently used (the Appellant’s email address).

5    On 29 June 2026, the National Migration Team of the Court emailed the Appellant to the Appellant’s email address requesting a response and again advising of the hearing date for his appeal (being today). On 6 July 2026, the Appellant responded to the 29 June 2026 email advising he was in the process of engaging with a lawyer and that he would be attending remotely.

6    On 6 July 2026, the parties were advised by email (and for the Appellant to the Appellant’s email address), that the matter would be listed for case management before the presiding judge, Justice Rangiah, on 16 July 2026 at 10.15 am AEST. Appearances were required by 15 July 2026.

7    On 15 July 2026, the Appellant responded from the Appellant’s email address acknowledging receipt of the email advising of the listing for the case management hearing and stating that he would be in attendance.

8    At the case management hearing on 16 July 2026, the Appellant failed to appear. Orders were made amending the timetable for the provision of material on the appeal. The Orders also required the Minister to file the appeal book and his written submissions first. Those Orders were provided to the parties later that day, on 16 July 2026; this email has been marked in these proceedings as exhibit 2. Importantly, those Orders also recorded the following note, that is:

THE COURT NOTES THAT:

1.    The appellant failed to appear at the case management hearing on 16 July 2026.

2.    If the appellant is absent when the appeal that is listed for 26 August 2026 is called for hearing, the appeal may be dismissed or may proceed in the appellant’s absence.

9    The Minister filed the appeal book and his submissions in accordance with the orders of 16 July 2026. The Appellant has not provided any written submissions in accordance with those Orders.

10    On 13 August 2026, the Associate to the presiding judge emailed the parties referring to the hearing of the appeal and again provided the remote link; this has been marked as exhibit 3.

11    When the matter was called on this morning, the Appellant did not appear. The matter was called outside court three times and the Webex link checked for any remote appearance. The matter was stood down for more than 10 minutes in case the Appellant was running late. On the resumption of Court, the Appellant was still not in attendance.

12    In those circumstances, and as was foreshadowed by the Minister in both his written submissions and in an affidavit filed on 24 August 2026, the Minister made an oral application which sought that we exercise the power under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) for the appeal to be dismissed. The Minister also sought to rely on correspondence providing the 24 August affidavit to the Appellant, which was marked as exhibit 1.

13    Rule 36.75 provides as follows:

36.75    Absence of party

(1)    If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a)    if the absent party is the appellant:

(i)     the appeal be dismissed; or

(ii)     the hearing be adjourned; or

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

(b)    if the absent party is the respondent:

(i)    the hearing proceed generally or in relation to a particular claim for relief in the appeal; or

(ii)    the hearing be adjourned; or

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

(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; and

(b)    for the further conduct of the hearing.

14    From the above, it is clear that the Appellant was aware of the listing of the case management hearing on 16 July 2026, and despite advising he would appear, he did not. The Appellant was advised by way of the same email address, being the Appellant’s email address, of today’s hearing, on more than one occasion. Furthermore, and again to that same email address, the Appellant was provided with a copy of the Orders of the Court from 16 July 2026, which expressly noted that if the Appellant failed to appear, and should he be absent when the appeal was called on for hearing, the appeal may be dismissed. When the Minister served his submissions, he reminded the Appellant of the hearing date and time and also stated that should the Appellant not appear, the Minister would seek orders for the appeal to be dismissed with costs. This was again stated when the Minister served his list of authorities on 19 August 2026.

15    For these reasons, we are satisfied that the Appellant was aware of today’s hearing of his appeal. He has failed to appear on the hearing of his own appeal, he has failed to file any submissions to support or advance his arguments on the appeal, and he has failed to engage with or communicate further about his appeal since 15 July 2026. In these circumstances, then, it is appropriate to dismiss the appeal pursuant to r 36.75(1)(a)(i) of the Rules.

16    Finally, in exercising that power, it is also relevant to note two matters: first, this is not a determination on the merits of the appeal, and second, the Appellant has an entitlement to make an application under r 36.75(2) of the Rules to set aside the order made today dismissing the appeal. Whether or not such an application would succeed would depend upon an exercise of discretion. Relevantly, without being exhaustive, that discretion includes whether the Appellant can provide an acceptable explanation for his failure to attend the hearing of his appeal today and the strength of his case on the appeal if the order dismissing the appeal were to be set aside: Prashar v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 197; [2001] FCA 1573 at [11] (Katz J, with whom Branson and Mansfield JJ agreed).

17    For these reasons, then, the Court makes the following orders:

(1)    The appeal is dismissed under rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).

(2)    The Appellant pay the First Respondent’s costs of the appeal to be fixed on a lump sum basis by a registrar in accordance with GPN-Costs.

Associate:    

Dated:    4 September 2026