Federal Court of Australia

Alsaidat v Minister for Immigration and Citizenship [2026] FCA 272

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is changed to “Minister for Immigration and Citizenship”.

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

3.    The appellant is to pay the first respondent’s costs as agreed or assessed.

4.    With respect to any application to set aside these orders under rule 36.75(2) of the Federal Court Rules and out of an abundance of caution, time will not commence to run until the publication of the reasons delivered on 16 March 2026.

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)

PERRY J:

1    This is an appeal against a decision of the Federal Circuit and Family Court of Australia (Division 2) refusing to set aside a decision of the then Administrative Appeals Tribunal, which affirmed a decision of a delegate of the Minister to refuse to grant the appellant a Partner (Temporary) (Class UK) visa.

2    The appellant is a citizen of Jordan who arrived in Australia in April 2013 on a student visa. On 26 May 2015, he married an Australian citizen. On 29 May 2015, he applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa, on the basis of his relationship with his wife, who was his sponsor.

3    The appellant was represented by counsel before the primary judge.

4    By a notice of appeal filed on 2 June 2022, the appellant advances one ground of appeal, namely, that the Tribunal made a jurisdictional error by failing to put information to the appellant in accordance with s 359A of the Migration Act 1958 (Cth). The Tribunal had found that the appellant and the sponsor were not in a genuine and continuing spousal relationship, in part because the residential address indicated in a photo identification card provided by the appellant to a hearing officer at the start of the Tribunal hearing on 22 March 2018 was different from the residential address of the appellant’s wife.

5    I note that this matter was part of the cohort or backlog of appellate cases created by restrictions on in-person hearings in 2020 and 2021 as a result of the COVID-19 pandemic. This explains the lengthy delay between the filing of this appeal and the listing of the matter for hearing.

6    After the parties were notified of the listing date for the hearing of the appeal, the appellant’s former solicitors filed a Notice of Intention to Cease to Act on 4 February 2026, followed by a Notice of Ceasing to Act on 10 February 2026. No address for service has since been filed by the appellant or any legal representative for him and as such, it appears that he has not engaged any further legal representation on the appeal. The appellant did not file any written submissions in advance of the appeal despite having been afforded that opportunity by orders made by the Registrar.

7    In circumstances where the appellant did not appear at the hearing today, the Minister applied for the appeal to be dismissed under rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) for non-appearance and made brief oral submissions in support of that application. He also relied upon correspondence on 11 March 2026 advising, as I shortly explain, of the hearing today and potential consequences if the appellant did not attend.

8    Rule 36.75(1)(a) provides:

(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;

…

9    I agree that the appeal should be dismissed under r 36.75(1)(a)(i) by reason of the appellant’s failure to attend when the appeal was called on today. In reaching this view, I have had regard to a number of factors in addition to the appellant’s failure to attend.

(1)    The National Migration Team of the Federal Court of Australia wrote to the parties by email on 24 December 2025 advising that the appeal was listed for hearing on Monday 16 March 2025 at 2:15pm (AEDT) at the Law Courts Building, Queens Square, 184 Phillip Street, Sydney, for half a day. The email also advised that the courtroom allocated for the matter would be displayed on a noticeboard at the Federal Court on the day of the hearing, or would be available on the daily court list from late in the afternoon the day before the hearing. The email further stated:

Please note that orders determining the matter (including an order as to costs) may be made in your absence if you or your lawyer do not attend Court at the specified time.

(2)    The email address to which this email from the Migration Team was sent was the email address of the appellant’s former solicitors which they had provided in the notice of appeal as their email address for correspondence.

(3)    The appellant did not file any written submissions in support of his appeal despite orders by the Registrar made on 8 June 2022 providing that the appellant was to file and serve a written outline of submissions no later than ten business days before the hearing date (being 2 March 2026).

(4)    On 9 March 2026, the NSW Registry wrote to the parties by email, providing a reminder notice which repeated the information in (1) above. This email was addressed to the appellant’s last known email address as notified by his former solicitors in the Notice of Ceasing to Act filed on 10 February 2026, with a copy also sent by post to the appellant’s last known residential address again as advised by his former solicitors.

(5)    On 11 March 2026, the solicitor for the Minister wrote by email to the appellant to remind him of the hearing.  The original email from the Migration Team at the Federal Court dated 24 December 2025 advising of the details of the hearing today was included. That email also stated:

You must appear at the hearing. If you do not appear, we will be seeking that the Court make an order for your matter be [sic] dismissed for non-appearance, pursuant to rule 30.22 of the Federal Court Rules 2011 and ask that a costs order be made against you.

(Error in the original.)

(6)    The email from the Minister’s solicitor included a telephone number as well as an email address by which they could be contacted.

(7)    In addition, on 11 March 2026, under cover of an email, the Minister’s solicitors wrote to the appellant enclosing by way of service a copy of the List of Authorities filed in the Federal Court on the same day and again reminded the appellant of the listing of his matter today. That email also repeated that if he did not attend the scheduled hearing, the Minister “will seek orders from the Court that your application be dismissed with costs”.

(8)    There has been no response from the appellant to the emails from the Minister’s solicitors to which I have referred, or to those from the Federal Court.

(9)    When the appeal was called on this afternoon, the appellant was not present in the courtroom. As a result, the Court Officer, at my request, called the matter outside the courtroom three times but there was no appearance by the appellant. I then stood the matter down for a short period in order to allow an attempt to be made to contact the appellant via the mobile telephone number for him which was provided in the Notice of Ceasing to Act. I also asked that the interpreter, who was present in the courtroom, assist with the call should the appellant answer and am grateful to him for that assistance. The call was answered on the second attempt by the Minister’s solicitor, and there was a short conversation between the Minister’s solicitor and the man who answered the phone, which was interpreted by the interpreter. The man who answered the phone did not identify himself and, while the purpose of the call was explained by the interpreter, terminated the call shortly thereafter. A third attempt to contact the appellant by dialling that number apparently went straight through to voicemail.

10    Finally, I have had regard to the entitlement of the appellant to apply under r 36.75(2) to set aside the orders made today. Whether or not any such application succeeds will depend upon an exercise of discretion. I note that relevant considerations to the exercise of that discretion include whether there is an acceptable explanation for the appellant’s failure to attend the hearing today and the strength of his case on the appeal if the order dismissing the appeal were to be set aside.

11    For these reasons, the appeal should be dismissed under r 36.75(1)(a)(i) of the Federal Court Rules with the appellant to pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    17 March 2026