Federal Court of Australia

SZRQJ v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 312

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to seek leave to appeal be dismissed for absence of a party pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).

2.    The applicant pay the first respondent’s costs fixed in the amount of $3,930.

3.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

4.    By 4.00pm on 24 March 2026, the first respondent send a copy of these orders:

(a)    by email to the applicant’s email address that is notified on the application;

(b)    by text message to the applicant’s mobile number that is notified on the application.

5.    The applicant has liberty to apply, within 14 days of these orders being made, to vary or set aside order 1.

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

REASONS FOR JUDGMENT

YOUNAN J:

Application for an extension of time

1    The applicant is a citizen of the People’s Republic of China. On 2 April 2008, she arrived in Australia on a Student Guardian (Subclass 580) visa. On 30 June 2011, the applicant applied for a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth), which was refused by a delegate of the first respondent (Minister) on 20 October 2011. The then Refugee Review Tribunal affirmed the decision of the delegate on 13 June 2012.

2    By application filed on 7 February 2023, the applicant seeks an extension of time to seek leave to appeal from a summary judgment of the then Federal Magistrates Court of Australia delivered on 31 October 2012, dismissing an application for review of the Tribunal’s decision under r 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) (now repealed): SZRQK & Anor v Minister for Immigration & Anor [2012] FMCA 1038.

3    As the application for an extension of time to seek leave to appeal was filed 3,737 days after the expiry date of 14 November 2012 (i.e., a delay of more than ten years), the applicant requires an extension of time under r 35.14 of the Federal Court Rules 2011 (Cth).

4    The applicant filed an affidavit in support of the application for an extension of time, which was filed on 7 February 2023. The application and supporting affidavit are the only documents filed by the applicant in this proceeding.

Non-appearance

5    The applicant is a self-represented litigant. Before the Tribunal and in the court below, the applicant appeared with the assistance of a Mandarin interpreter. A Mandarin interpreter was arranged for the hearing of this application.

6    At the hearing on 20 March 2026, the matter was called on by my associate, and then by the Court officer outside the courtroom. There was no appearance by the applicant, or on her behalf.

Dismissal application

7    At the hearing, the first respondent applied to dismiss the proceeding for absence of a party under r 35.33(1)(a)(i) of the Rules.

8    Rule 35.33 relevantly provides:

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

…

9    The Court has the power to dismiss an application seeking an extension of time within which to institute an appeal for failure of the applicant to attend a hearing of the application, pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), read in conjunction with s 25(2BA). The power is to be exercised in accordance with the overarching purpose under s 37M of the Act to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible: Irwin v Irwin [2016] FCA 1565 at [36] (Charlesworth J).

Notification of the hearing

10    On the evidence before the Court, I am satisfied that:

(1)    The applicant had notice of the hearing.

(2)    The applicant was apprised of the potential consequences of not attending the hearing.

(3)    The applicant elected not to attend the hearing.

11    That evidence comprises email correspondence sent from the Minister to the applicant dated 23 December 2025 and 19 February 2026, which was tendered by the first respondent at the hearing, and which notifies the applicant of the listing of the hearing and informs the applicant that if she does not appear at the hearing the Minister may apply to have the matter dismissed, with costs. The second email attached by way of service a copy of the first respondent’s written submissions.

12    On 10 March 2026, Chambers sent an email to the parties noting that the applicant had not filed written submissions in accordance with the Registrar’s orders and requesting confirmation of receipt of the email. No response was received from the applicant.

13    A request for confirmation of attendance was sent from Chambers by email on 16 March 2026. No response was received from the applicant.

14    On 17 March 2026, the NSW Registry contacted the applicant by mobile phone at the request of Chambers, to ensure the applicant’s awareness of the listing date. The applicant confirmed that she was aware of the listing date, and would respond to the email from Chambers sent on 16 March 2026.

15    On 18 March 2026, the applicant contacted the Court by email (ex parte) and stated that she would not attend the hearing on 20 March 2026.

16    Later that day, the Court sent an email to the parties informing the applicant that she should indicate: (1) the reason(s) why the applicant is unable to attend the hearing; and (2) whether the applicant would be able to attend the hearing by audio-visual link if given the opportunity. The applicant was reminded that orders determining the matter, including an order dismissing the proceeding and an order for costs, might be made in her absence.

17    On 19 March 2026, the applicant sent a response to the Court confirming that she would not attend the hearing. No further explanation was provided.

Reasons for dismissal

18    Being satisfied that the applicant had notice of the hearing, was apprised of the potential consequences of the hearing, and elected not to attend the hearing without explanation, I consider that there is no utility in determining her application for an extension of time. Coupled with the failure to provide an outline of written submissions in support of her application, I consider that her absence suggests a want of prosecution of her claim. Accordingly, I consider that it is in the interests of justice to exercise the Court’s discretion to dismiss her application.

19    The failure of the applicant to provide written submissions is not a technical or minor default. It is a breach of the Court’s orders. Coupled with the opaque proposed grounds of appeal, that failure causes the Court (and the Minister) to divine the basis of the proposed appeal, and therefore the application. It wastes time and causes unnecessary expense, in circumstances where the Minister has filed written submissions anticipating the basis of the proposed appeal.

20    I note that the applicant may apply to the Court for an order setting aside or varying the order dismissing the application, pursuant to r 35.33(2)(a) of the Rules. As a matter of discretion, consideration of such an order will be informed by the reason for the failure to attend the hearing (which is presently unknown) and the strength of the application for an extension of time and ultimately the proposed grounds of appeal (which is presently difficult to fathom).

Lump Sum Costs

21    The first respondent seeks costs fixed in the amount of $3,930, or alternatively, an order for costs as agreed or taxed. At the hearing, the Minister submitted that the amount sought is a portion of the Minister’s costs to date, and that it is a fair amount.

22    While the Minister did not file any affidavit in support of the costs order sought, I consider that there is sufficient evidence to indicate that: (a) it is appropriate to order costs in a lump sum pursuant to s 43(3)(d) of the Act and r 40.02(b) of the Rules; and (b) the amount sought is reasonable.

23    First, the amount sought is well below the short form amount in a migration matter where the application is dismissed after hearing: Sch 3 item 15.2 of the Rules.

24    Second, the first respondent has prepared an outline of written submissions, and otherwise prepared for the hearing of the application, in circumstances where Minister has taken a generous approach to the construction of the proposed grounds of appeal, which in this matter, is a central aspect of consideration of the application for an extension of time.

25    Third, I note that the primary judge made an order for the first respondent’s costs set in the amount of $3,239. The amount sought in this appeal, and in consideration of a proposed appeal, represents a modest increase.

26    Finally, given the historical difficulty in eliciting the applicant’s participation in this proceeding, I am disinclined to require the Minister to expend any further time and resources in seeking the agreement of the applicant to an award of costs or otherwise engaging in any further process to finally resolve this matter.

Conclusion

27    The application should be dismissed, with the applicant to pay the first respondent’s costs fixed in the amount of $3,930.

Associate:

Dated:    20 March 2026