Federal Court of Australia

TGRN v Minister for Immigration and Multicultural Affairs [2025] FCA 405

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to ‘Minister for Immigration and Multicultural Affairs’.

2.    The application for an extension of time be dismissed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

DOWLING J

1    The applicant, by his application of 3 April 2024, seeks an extension of time to apply for judicial review of a decision of the Administrative Appeals Tribunal dated 8 February 2024 (extension application). The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to revoke the mandatory cancellation of the applicant’s visa. The applicant is a New Zealand citizen who held a Resident Return (Class BB) (Subclass 155) visa.

2    The applicant was involuntarily removed from Australia on 5 April 2024. The applicant has not taken any action in his extension application since April 2024. The applicant provided an email address and mobile telephone number in the affidavit filed in support of his extension application (and in his draft originating application submitted with the extension application). The communications between the parties and the communications between the Court and the applicant have used that email address and mobile telephone number and are explained in detail below.

3    The extension application was listed for hearing before this Court on 10 April 2025. The applicant was emailed a videoconference link for the hearing on the day of the hearing. The applicant failed to appear at the commencement of the hearing. The matter was called outside the courtroom, as is the Court’s practice. The applicant, or any representative of the applicant, did not appear. I adjourned the matter briefly so that my chambers could attempt to contact the applicant by telephone and email. The applicant did not respond to the email from my chambers and the call to the mobile telephone number was not able to be connected. Following the adjournment, the matter was called three times outside the courtroom and again the applicant, or any representative of the applicant, did not appear.

4    I am satisfied that the applicant was notified of the hearing today. On 30 January 2025, the Court emailed the parties, notifying them that the extension application was listed for hearing on 10 April 2025. The Court sent another email to the parties on 7 April 2025 confirming that the matter was listed on 10 April 2025 and requesting appearances. The applicant did not respond to that email. The Minister emailed the applicant on 19 March 2025 and 25 March 2025 in relation to the proceeding and received no response.

5    The applicant has not engaged with his extension application for nearly twelve months. On 15 July 2024, Ms Edwina Smith of Counsel agreed to act on behalf of the applicant pro bono. Between her appointment on 15 July 2024 and 1 November 2024, Ms Smith was unable to contact the applicant. Accordingly, Ms Smith ceased to act for the applicant on 1 November 2024. The Court thanks Ms Smith for her willingness to assist.

6    The Court emailed the applicant on 15 July 2024 to confirm the appointment of pro bono Counsel. There was no response to that email. The Court emailed the Minister on 22 August 2024 to seek updated contact details for the applicant. On 27 August 2024, the Minister confirmed that the contact details for the applicant (being the email and telephone number in the affidavit in support of the extension application and draft originating application) were the most up-to-date contact details they possessed. The Court again emailed the applicant on 4 September 2024. In that email, the Court: requested that the applicant urgently contact the Court and pro bono counsel, requested the applicant provide current contact details, and set out a chronology including efforts by the Court to contact the applicant.

7    The last email correspondence from the applicant to the Court was on 29 April 2024. On or about 19 April 2024, the applicant emailed a member of the Court’s internal migration team (using the same email address that appears in the affidavit in support of the extension application). That email said, “I’ve been removed from Australia already and didn’t get to fight my case.” On 29 April 2024, the migration team member replied saying “thank you for your email. Do you intend to continue the proceedings while offshore?” The applicant responded at 10:58 am on 29 April 2024 stating, “[y]es please, thank you”. The Court has not heard from the applicant since that time despite the numerous efforts set out above.

BACKGROUND EVENTS

8    On 20 July 2023, the applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). Section 501(3A) of the Act provides that the Minister must cancel a visa if the Minister is satisfied the person has a substantial criminal record or because a court has convicted the person of a sexually based offence involving a child. The applicant was convicted of sexual penetration of his half-sister and was sentenced on 25 May 2023 to 6 months’ imprisonment with an 18 months’ community correction order. At the time of the offending, the applicant was 25 and his half-sister was 16. The Tribunal found that the applicant was separately convicted or found guilty of other matters between 2016 and 2017 for which he was not sentenced to a term of imprisonment. As outlined below, the Minister concedes that the Tribunal erred in relying on one of those matters.

9    The applicant made representations to seek revocation of the visa cancellation pursuant to s 501CA(4)(a) of the Act by filing a revocation request dated 3 August 2023. The applicant then filed a personal circumstances form in support of the request on 24 August 2023.

10    A delegate for the Minister refused to revoke the cancellation decision on 21 November 2023.

11    On 28 November 2023, the applicant applied to the Tribunal for merits review of the delegate’s non-revocation decision. On 30 January 2024, the Tribunal conducted a hearing in which the applicant appeared in person. On 8 February 2024, the Tribunal upheld the decision not to revoke the cancellation. The Tribunal found that there was no other reason that the cancellation of the applicant’s visa should be revoked under s 501CA(4)(b)(ii).

12    On 3 April 2024, the applicant lodged an application for an extension of time to seek judicial review of the Tribunal’s decision in this Court. If the applicant received the Tribunal decision on the date the decision was published, 8 February 2024, the time for that application had lapsed on 14 March 2024: see s 477A of the Act.

13    On 5 April 2024, the applicant was involuntarily removed from Australia to New Zealand. The solicitors for the Minister have been instructed that “inquiries were made with relevant removals officers with no indication that the applicant had raised an issue of an application having been sent to the Court at the time of his removal”. On 8 April 2024, the Minister was notified of the extension application. As explained, the applicant has not taken any action in his extension application since April 2024.

PRINCIPLES and consideration

14    The Minister submits that the Court should dismiss the application due to the applicant’s absence at trial pursuant to s 20(5)(d)(ii) of the Federal Court of Australia Act 1976 (Cth) and r 30.21(1)(a)(i) of the Federal Court Rules 2011 (Cth).

15    Section 20(5)(d)(ii) of the Federal Court of Australia Act 1975 (Cth) provides:

In a matter coming before the Court…a single Judge…may:

(d)    make an order that the matter be dismissed for:

(ii)    failure of the applicant to attend a hearing relating to the matter.

16    Rule 30.21(1)(a)(i) of the Federal Court Rules 2011 (Cth) provides:

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

(a)    if the absent party is the applicant:

(i)    the application be dismissed.

17    In Pham v University of Queensland [2001] FCA 1044, Heerey J dismissed an application as the result of the applicant’s non-appearance pursuant to the equivalent to r 30.21 in the predecessor version of the court rules. That dismissal was upheld on appeal in Pham v University of Queensland [2002] FCAFC 40. In upholding the dismissal, Drummond J at [26] (with whom Marshall and Finkelstein JJ agreed) said 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”. More recently, Justice Feutrill in Joy v UGL Operations and Maintenance Pty Limited (No 4) [2024] FCA 410 relied on Pham when dismissing an application as the result of the applicant’s absence.

18    Although no examination of the merits is required when dismissing a proceeding for non-appearance, I note that the Minister concedes that there is jurisdictional error in the Tribunal’s decision.

19    The Minister states that the Tribunal set out the applicant’s criminal history at [26] of its decision. One of those entries in that list was:

25 January 2016 – possess prohibited drug (12 month bond).

20    The Minister says this is an offence for which no conviction was recorded pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Further, by operation of ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act 1914 (Cth), the Tribunal was not permitted to refer to the event or fact that the applicant was charged with and “convicted” of that offence. The Minister also says the Tribunal’s reliance on this fact was material. The Minister says that in ordinary circumstances, he would consent to an extension of time and to orders quashing and remitting the decision. However, the Minister submits that where the applicant has not engaged with the proceeding in any way since 29 April 2024 and since that time the applicant has not demonstrated any intention to continue to pursue the relief sought, it is appropriate for the Court to exercise its discretion to dismiss the proceeding because of non-appearance.

21    I am satisfied that the applicant was made aware of the hearing: see [4] above. I am satisfied that the applicant has not engaged with the proceeding in any way since April 2024: see [5]- [7] above.

22    I am satisfied that it is not appropriate to engage in a detailed examination of the merits of the application: see Pham at [26]. Whilst the Minister’s concession demonstrates that the application for extension of time and any consequential application for judicial review of the Tribunal’s decision have merit, the applicant has ceased to engage with the application for nearly a year and there is no utility in allowing the application to continue in those circumstances. In all of the circumstances, I am satisfied that it is in the interests of justice to exercise my discretion to dismiss the application.

23    The Minister applies for the application to be dismissed pursuant to r 30.21(1)(a) of the Rules and s 20(5)(d)(ii) of the Act. Rule 30.21(2)(a) provides that the applicant may apply to set aside the order dismissing the proceeding. Section 20(5)(da) of the Act provides that the Court may set aside an order dismissing a matter for failure of the applicant to attend a hearing.

DISPOSITION

24    For all the reasons set out above, the application is dismissed. The Minister sought no order as to costs and none will be made. In addition to the above, the Minister sought an order that his name be changed to ‘Minister for Immigration and Multicultural Affairs’. I will make that order.

Associate:

Dated:    24 April 2025