Federal Court of Australia
BWP18 v Minister for Immigration and Citizenship [2026] FCA 784
Appeal from: | BWP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1217 |
File number(s): | VID 100 of 2024 |
Judgment of: | NESKOVCIN J |
Date of judgment: | 17 June 2026 |
Date of publication of reasons: | 19 June 2026 |
Catchwords: | MIGRATION – application for extension of time to apply for judicial review of decision of the Administrative Appeals Tribunal not to revoke Minister’s decision to cancel protection visa – application for judicial review dismissed by a Registrar of the Federal Circuit and Family Court of Australia (Div 2) where applicant failed to appear at hearing – application for reinstatement of review application dismissed by a Registrar – review of the Registrar’s orders dismissed by a Judge of that Court – application for extension of time to seek leave to appeal – default of appearance – application dismissed |
Legislation: | Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c) Federal Court Rules (2011) (Cth) r 30.21(1)(a)(i) |
Division: | General Division |
Registry: | Victoria |
National Practice Area: | Administrative and Constitutional Law and Human Rights |
Number of paragraphs: | 24 |
Date of hearing: | 17 June 2026 |
Counsel for the Applicant: | The applicant did not appear |
Solicitors for the First Respondent: | Mr McDonald of Clayton Utz |
ORDERS
VID 100 of 2024 | ||
BETWEEN: | BWP18 Applicant | |
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
order made by: | NESKOVCIN J |
DATE OF ORDER: | 17 JUNE 2026 |
THE COURT ORDERS THAT:
1. The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2. The name of the second respondent is amended to “Administrative Review Tribunal”.
3. The proceeding is dismissed pursuant to rule 30.21(1)(a)(i) of the Federal Court Rules 2011 (Cth).
4. The applicant pay the first respondent’s costs.
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 the transcript)
NESKOVCIN J
1 This is an application for an extension of time to apply for leave to appeal against the orders of a judge of Division 2 of the Federal Circuit and Family Court of Australia.
2 The applicant is a citizen of Malaysia.
3 In chronological order, the series of decisions culminating in this application are as follows.
4 On 24 February 2016, the applicant applied for a protection subclass 866 visa.
5 On 22 June 2016, a delegate of the first respondent refused the grant of the visa.
6 On 1 July 2016, the applicant applied to the Administrative Appeals Tribunal for review of the delegate's decision. The applicant appeared before the Tribunal, assisted by an interpreter, for the hearing on 28 July 2017.
7 On 14 September 2017, the Tribunal notified the applicant of its decision, made on 13 September 2017, to affirm the delegate's decision to refuse the grant of the visa.
8 On 13 April 2018, the applicant made an application to the Federal Circuit Court, as it then was, for an extension of time to apply for judicial review of the Tribunal’s decision (Substantive Application). The application was 177 days out of time.
9 On 15 August 2023, the Federal Circuit Court notified the parties by email of a callover before a Registrar, which was to take place on 29 August 2023.
10 On 29 August 2023, the Registrar made orders dismissing the Substantive Application for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
11 On 20 September 2023, the applicant filed an application to the Federal Circuit Court, seeking reinstatement of the Substantive Application (Reinstatement Application).
12 On 1 November 2023, the Registrar dismissed the Reinstatement Application.
13 On 5 December 2023, the applicant filed an application for review of the Registrar’s decision to dismiss the Reinstatement Application (Review Application) and for the Review Application to be conducted as a hearing de novo.
14 At the hearing on 14 December 2023, Judge J. Young granted an extension of time for the Review Application, which was made 27 days out of time.
15 On 20 December 2023, Judge J. Young dismissed the Review Application.
16 On 7 February 2024, the applicant filed the application in this Court, accompanied by an affidavit.
17 On 5 May 2026, my Chambers notified the parties that the application would be listed for hearing at 10:00am on 17 June 2026. My Chambers received a bounce-back notification to that email from the applicant’s email address.
18 On 20 May 2026, a solicitor on behalf of the respondent emailed my Chambers indicating that they had spoken with the applicant over the telephone and provided an alternative email address at which the applicant could be contacted.
19 There then followed a further series of communications.
20 Relevantly, on 11 June 2026 at 8:50pm, the applicant emailed my Chambers outlining three matters, that is: first, why leave should be granted; second, why permission to appeal should be given; and thirdly, why permission should now be given to the applicant to raise a new ground of appeal that was not raised before the Tribunal.
21 On 12 June 2026, my Chambers confirmed that the application would remain listed for an in-person hearing at 10:00am this morning.
22 Mr McDonald, who appears on behalf of the respondent, seeks an order that the proceeding be dismissed under r 30.21(1)(a)(i) of the Federal Court Rules (2011) (Cth) on account of the absence of the applicant when the matter was called on for hearing.
23 I am satisfied that the proceeding should be dismissed under that rule. Not only is the power of dismissal enlivened, but there are ample grounds for the exercise of the discretion to dismiss the application, in particular the applicant's failure to appear, having been given notice and being aware that the proceeding was listed for today.
24 I will therefore dismiss the proceeding with costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Neskovcin. |
Associate:
Dated: 19 June 2026
