Federal Court of Australia

BWM23 v Minister for Immigration and Citizenship [2026] FCA 316

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 23 October 2023 be dismissed.

2.    The first and second applicants are to pay the first respondent’s costs as taxed or agreed.

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

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

PERRAM J:

1    This is an application for leave to appeal from orders made by the Federal Circuit and Family Court of Australia (Division 2) (‘Federal Circuit Court’). It was originally listed for hearing on Tuesday 17 March 2026. Prior to that hearing, the first applicant (the ‘applicant’) provided a medical certificate seeking an adjournment. I indicated through my staff that the medical certificate was not sufficient to justify an adjournment and that he needed to get a fresh certificate with more detail.

2    Further correspondence resulted in the applicant informing me that he could not get such a certificate before 5pm on Tuesday 17 March 2026. This was because that was the first time that his treating doctor could see him. I then adjourned the proceeding to 10:15am this morning, 19 March 2026.

3    Late yesterday, the applicant contacted my chambers asking whether he could attend this morning's hearing by a link. This morning before the hearing, I granted him leave to appear in that manner. Despite the adjournment granted on Tuesday, no medical certificate has been provided to justify any further adjournment of the case. The applicant was, however, good enough to provide me with all of his medical records. Without setting out the detail of the content of those documents, I am not satisfied that any of those records would warrant non-attendance at a court hearing.

4    When the matter was called on this morning, the applicant logged in via a link and is clearly present on the Teams platform in the courtroom. An interpreter in Hindi has been provided, who is remotely located. When the matter commenced, I explained what was happening to the applicant, but he made no response. I offered him repeated opportunities to speak, but he did not take advantage of those. In the circumstances, I am abundantly satisfied that the applicant has had more than a fair opportunity to participate in this hearing.

5    In circumstances where he decided not to say anything, I did not find it necessary to call upon the Minister's representative. I therefore proceed to deal with the applicant's application for leave to appeal. In my view, the application is devoid of merit and should be dismissed. This is for the following reasons.

6    On 14 May 2022 the applicant applied for a protection visa. On 11 April 2023 a delegate of the Minister refused that visa application. Any application for a review of that decision to the Administrative Review Tribunal (the ‘Tribunal’) must be brought within 28 days. This is the effect of s 412(1)(b) of the Migration Act 1958 (Cth) (the ‘Act’). If an application is not made to the Tribunal within the 28-day period, the Tribunal wholly lacks jurisdiction to deal with the application. This is well-established but see, for example, Rana v Minister for Immigration and Broder Protection [2014] FCA 1233 at [2], [3] and [22] per Wigney J.

7    The applicant applied for a review in the Tribunal on 5 June 2023. This was outside the 28-day period fixed by the Act. The Tribunal, therefore, had no jurisdiction to hear it. On 28 June 2023 the Tribunal dismissed the application because it had no jurisdiction, and on 29 June 2023 the applicant was notified of the Tribunal’s decision.

8    On 20 July 2023, the applicant applied to the Federal Circuit Court for judicial review. That application was summarily dismissed by a Registrar of that court on 28 September 2023. This was because the Registrar concluded that the Tribunal was correct that it had no jurisdiction. On 6 October 2023, the applicant applied for a review of the Registrar's decision to a Judge of the Federal Circuit Court. This application was filed outside the 7-day appeal period, fixed by the rules of that court: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 21.02.

9    On 20 October 2023, a Judge of the Federal Circuit Court upheld the Registrar's orders. The Judge did so on the basis that the Tribunal had no jurisdiction. In reaching that conclusion, the Judge was plainly correct. The appeal to this Court is therefore hopeless. In the applicant's application for leave to appeal, he puts forward a number of grounds of review. None of these address the jurisdictional problem, and none of them puts forward a coherent ground of review. The appropriate orders are therefore as follows:

(1)    The application for leave to appeal lodged on 23 October 2023 be dismissed.

(2)    The first and second applicants are to pay the first respondent’s costs as taxed or agreed.

(3)    The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

Associate:

Dated:    24 March 2026