Federal Court of Australia

ADF17 v Minister for Immigration and Multicultural Affairs [2025] FCA 453

ORDERS

THE COURT ORDERS THAT:

1.    The First Respondent’s name be changed to Minister for Immigration and Multicultural Affairs.

2.    The applicant’s application for an extension of time dated 23 July 2021 and filed on 26 July 2021 is dismissed.

3.    The applicant is to pay the First Respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

(revised from transcript)

WIGNEY J:

1    The applicant in this matter has applied for an extension of time in which to appeal from a judgment of the (then) Federal Circuit Court of Australia. That judgment dismissed the applicant's application for judicial review of a decision of the (then) Administrative Appeals Tribunal: ADF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1328. The decision of the Tribunal affirmed a decision of a delegate of the first respondent, the (then) Minister for Immigration and Border Protection, not to grant the applicant a protection visa.

2    As will be explained in more detail later, the applicant did not appear at the hearing of her application. I propose to dismiss her application due to her non-appearance. I will, however, provide some brief reasons if only to make it clear that, based on the material that has been filed to date, the application had no apparent merit in any event.

3    It is unnecessary in the circumstances to provide any detailed account of the facts and circumstances which underlie the applicant’s application. It is sufficient to note that the applicant is a citizen of Malaysia. She applied for a protection visa as long ago as November 2015, having previously travelled to and from Australia on several occasions on various visitor's visas. The applicant’s protection visa application was essentially based on a claim that she feared persecution or harm in Malaysia on the basis of her race, she being of Chinese ethnicity. She also claimed that she had been sexually harassed by a particular customs officer in Malaysia, and that her complaints concerning that conduct were not properly investigated or pursued by the authorities because she was Chinese.

4    The Minister's delegate refused the applicant's visa application in March 2016. The applicant applied to the Tribunal for a review of the delegate's decision. The Tribunal heard that review application and affirmed the delegate's decision in December 2016.

5    It is unnecessary to consider the Tribunal's reasons in any detail. Suffice it to say that, while the Tribunal's reasons could not be said to be particularly insightful or persuasive, the upshot was that the Tribunal was not satisfied either that the applicant's claimed fear of persecution was well-founded, or that there were substantial grounds for believing that the applicant would suffer serious harm should she return to Malaysia. It followed that the Tribunal was not satisfied that the applicant met the essential criteria for the grant of a protection visa.

6    The applicant filed an application in the Circuit Court which sought judicial review of the Tribunal's decision. That application identified two supposed grounds of review: first, that the Tribunal "did not apply the law correctly”; and second, that the Tribunal did not "properly consider information".

7    On 15 June 2021, the primary judge dismissed the applicant's judicial review application. It is unnecessary to consider the primary judge's reasons for judgment in detail. It would, however, not be unfair to say that the primary judge's reasons were somewhat devoid of any meaningful reasoning or analysis. Rather, they largely comprised a series of broad and general conclusionary statements. The upshot was that the primary judge rejected the applicant's two judicial review grounds and found that the Tribunal had correctly identified the applicant's factual claims and had made adverse findings in respect of them. It was on that basis that the Tribunal had found that the applicant did not meet the criteria for a protection visa. The primary judge concluded that the adverse factual findings that were made by the Tribunal were open on the evidence and that the Tribunal did not make either of the errors that the applicant claimed that it had made.

8    The applicant did not file any notice of appeal in respect of the primary judge’s judgment within the prescribed period. On 26 July 2021, some thirteen days after the end of the appeal period, the applicant filed an application for an extension of time within which to file a notice of appeal. In her affidavit in support of the application, the applicant claimed that she filed her application after the appeal period because she misunderstood the time within which she was required to file her appeal.

9    The applicant's draft notice of appeal contained two grounds. The first ground of appeal was to the effect that the Tribunal failed to take into account the fact that she would be harmed if she was returned to Malaysia. The second ground was to the effect that the Tribunal did not properly apply the law to the applicant’s case because, so it was said, she was entitled to protection because she would be harmed if she returned to Malaysia.

10    As noted earlier, the applicant failed to appear at the hearing of her application for an extension of time. I have been provided with a bundle of documents which evidence the steps taken by both the Minister's legal representatives and the Court to contact the applicant and advise her of the date upon which her application would be heard. I will admit that bundle of documents into evidence given the possibility that the applicant might seek to reinstate and resurrect her application at some point in the future. I am satisfied from that evidence that the applicant was advised of the hearing date by correspondence sent to the email address she had nominated in her application. There is also evidence that a staff member of the Court’s Registry endeavoured to contact the applicant by way of a telephone call to her nominated mobile telephone number. It would appear that the telephone call was not answered, but that a message was left for the applicant. I am satisfied that the applicant was appropriately notified of the hearing date and that there is no explanation for her non-appearance at the hearing.

11    It should, however, be noted in this context that the Minister adduced affidavit and documentary evidence to the effect that the applicant left Australia on 31 July 2024 and has not returned. That perhaps explains why she did not physically appear at the hearing of her application. It does not, however, explain why she did not seek to appear at the hearing via an audio-visual link, particularly in circumstances where the correspondence which was sent to the applicant provided her with details of a “Teams” link through which she could appear at the hearing via video link. The evidence adduced by the Minister also indicated that the applicant currently holds no visa that would allow her to return to Australia. I will say something more about that fact in due course.

12    Rule 35.33(1) of the Federal Court Rules 2011 (Cth) provides as follows:

35.33  Absence of a party

(1)     If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, any other party may apply to the Court for an order that:

 (a)     if the absent party is the applicant:

 (i)     the application be dismissed; or

 (ii)     the application 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 aspect of the application; or

(ii)     the hearing be adjourned; or

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

13    I am inclined in all circumstances to dismiss the applicant's application due to her non-appearance. She has left Australia, and there is no basis for finding that she can or will return. She was appropriately advised of the hearing date by both emails sent to her nominated email address and a telephone call to her nominated telephone number. She did not respond to either the emails or telephone call. Her failure to appear, at least via video link, is unexplained. There is no indication that the applicant has made any attempt to pursue her application.

14    My inclination to dismiss the application on the basis that the applicant failed to appear at the hearing is fortified by the fact that, having reviewed the material filed by the parties to date, I am satisfied that the applicant’s application is without merit.

15    It is well accepted that, to secure an extension of time within which to lodge an appeal, an applicant must generally provide an acceptable explanation for failing to file an appeal within the prescribed period and demonstrate that they have an at least reasonably arguable ground of appeal. Neither of those requirements have been satisfied in the applicant's case.

16    The applicant's explanation for her failure to file an appeal within time is inadequate and unsatisfactory. It is an applicant's responsibility to make proper inquiries to determine the time by which an appeal must be lodged: see SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]. There is no evidence before me to suggest that the applicant made any inquiries or took any appropriate steps to determine the appeal period in her case.

17    As for whether there is any arguable ground of appeal, the applicant failed to file any written submissions as she had been ordered to do. The applicant’s failure to appear at the hearing meant that she did not advance any oral submissions in support of her proposed appeal grounds. It is in any event readily apparent that the applicant's proposed appeal is entirely without merit. Her two proposed grounds of appeal are devoid of any meaningful particulars and do little more than assert error on the part of the Tribunal in the most general terms. Both grounds are also based on the claim that the applicant would be harmed if she returned to Malaysia, a claim that the Tribunal rejected. The primary judge found that it was open to the Tribunal to reject that claim based on the material before it.

18    While the reasoning of both the Tribunal and the primary judge may not be ideal, there is nothing to suggest that the findings they made, or the conclusions they arrived at, were erroneous in any material respect. Indeed, when one considers the nature and content of the applicant’s factual claims, it is hardly surprising that the Tribunal found that the applicant did not meet the criteria for a protection visa. It is equally unsurprising that the primary judge found that it was open to the Tribunal to make that finding based on the material that was before it. There is, accordingly, no apparent merit in either of the applicant’s proposed grounds of appeal.

19    I should finally observe that the utility of the applicant’s application for an extension of time is in any event somewhat questionable given that she has left Australia and currently holds no visa that would afford her a right of return to Australia.

20    For all the foregoing reasons, the applicant's application for an extension of time must be dismissed with costs.

Associate:

Dated:    6 May 2025