Federal Court of Australia

YRPQ v Minister for Immigration and Citizenship [2026] FCA 804

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed for want of prosecution.

2.    The applicant pay the first respondent’s costs of the application to be taxed or as agreed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    By these proceedings, the applicant, under the pseudonym YRPQ, seeks review of a decision of the Administrative Review Tribunal (the Tribunal) to uphold a decision of the Minister for Immigration and Citizenship not to revoke the mandatory cancellation of his visa.

2    The matter came before the Court for a case management hearing on 17 June 2026. At that hearing, for the reasons which follow, the application was dismissed for want of prosecution.

Background

3    The application for review was filed on 9 January 2026, together with a supporting affidavit. The grounds of review set out in the Originating Application are as follows:

(1)    The tribunal had regard to irrelevant consideration.

(2)    The tribunal hearing was not fair.

(3)    The tribunal did not consider the interests of my minor daughter who is homeless at the present.

4    Those grounds are mere assertions and do not properly identify the basis upon which any error committed by the Tribunal was jurisdictional such that its decision should be quashed. Nor are they elucidated in any meaningful way in the supporting affidavit. They are, therefore, defective and would have been liable to be struck out on an application by the Minister.

5    In any event, since filing the application, YRPQ has returned to his country of citizenship. It appears that, as a result, he has paid little attention to the conduct of the proceedings.

6    Several orders have been made in these proceedings to progress the matter. On 19 March 2026, the Court made orders requiring YRPQ to file any further evidence in support of his application together with any written submissions.

7    Those orders were subsequently vacated on 13 April 2026, to allow time for the Court to arrange pro bono legal assistance for YRPQ. That assistance was obtained, with Mr Christian Hearn, solicitor, agreeing to act on behalf of YRPQ together with counsel, Mr Andrew Boe and Mr Lachlan Cameron. However, unfortunately, Mr Hearn was unable to contact YRPQ to obtain instructions, despite numerous attempts to do so.

8    It appears that YRPQ has chosen to ignore all correspondence in relation to his application. In addition to Mr Hearn’s attempts to obtain instructions, the Court has sent several emails to which he has failed to respond.

9    As a consequence, on 2 June 2026, YRPQ was ordered to notify the Court and the Minister’s legal representatives of his intention to pursue the application by 4:00 pm on 16 June 2026. He was given ample notice of those orders and of the case management hearing listed for 17 June 2026, which it was open to him to attend by audio-visual link were he minded to do so.

10    As at 17 June 2026, neither the Court nor the Minister’s solicitors have been contacted by YRPQ. Similarly, neither has Mr Hearn.

11    As submitted on behalf of the Minister, who has appropriately taken a cautious approach in this matter, the only reasonable inference from the foregoing is that YRPQ has lost interest in the application and does not intend to pursue it.

12    In these circumstances, it is appropriate to consider whether the application should be dismissed for want of prosecution.

The power to dismiss for want of prosecution

13    The Court’s power to dismiss proceedings for want of prosecution is set out in rr 5.22 and 5.23 of the Federal Court Rules 2011 (Cth):

5.22    When a party is in default

A party is in default if the party fails to:

(a)    do an act required to be done, or to do an act in the time required, by these Rules; or

(b)    comply with an order of the Court; or

(c)    attend a hearing in the proceeding; or

(d)    prosecute or defend the proceeding with due diligence.

5.23    Orders on default

(1)    If an applicant is in default, a respondent may apply to the Court for an order that:

(a)    a step in the proceeding be taken within a specified time; or

(b)    the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:

(i)    immediately; or

(ii)    on conditions specified in the order.

(2)    If a respondent is in default, an applicant may apply to the Court for:

(a)    an order that a step in the proceeding be taken within a specified time; or

(b)    if the claim against the respondent is for a debt or liquidated damages—an order giving judgment against the respondent for:

(i)    the debt or liquidated damages; and

(ii)    if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or

(c)    if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.05, or if the Court has ordered that the proceeding continue on pleadings—an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or

(d)    an order giving judgment against the respondent for damages to be assessed, or any other order; or

(e)    an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order.

Note 1:    The Court may make any order that the Court considers appropriate in the interests of justice—see rule 1.32.

Note 2:    An order or judgment under this Division may be set aside or varied.

14    These form part of the suite of powers conferred on the Court to regulate its proceedings in accordance with its overarching purpose as set out in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth).

15    In Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 396 (Lenijamar), Wilcox and Gummow JJ identified two obvious candidates for the exercise of power to dismiss a proceeding for want of prosecution under the former rules (Federal Court Rules 1979 (Cth) O 10 r 7), being “cases in which the history of non-compliance … is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases … in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the [other party]”: see also Wu v Avin Operations Pty Ltd [2006] FCA 36 [50] (Wu); Broad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 840 [37] – [38].

16    In Wu, Kenny J added to that which was said in Lenijamar:

[51]    When applying these principles, the Court must balance the need for the expeditious conduct of litigation, particularly in a court committed to a case management system, and the “the strong reluctance of courts to prevent litigants having a proper opportunity to present their cases” …

17    In Moana v Minister for Immigration and Border Protection (No 3) [2019] FCA 2052, Allsop CJ considered a case not dissimilar to the present, in which the applicant had been removed from Australia and appeared to have lost interest in his application, notwithstanding that the Court had arranged pro bono legal assistance for him. The pro bono counsel had made numerous unsuccessful attempts to contact the applicant for instructions before ultimately informing the Court that he was unable to make submissions on the applicant’s behalf. The Chief Justice dismissed the proceedings for want of prosecution, but ordered that the dismissal could be set aside by application.

18    Another example of the use of the power occurred in Hadchiti v Minister for Immigration and Border Protection [2018] FCA 386, where Markovic J dismissed proceedings for the applicant’s failure to attend a case management hearing. In that case, the applicant had voluntarily departed Australia and returned to Lebanon, following which his solicitors made various unsuccessful attempts to contact him, before issuing him with a Notice of Intention to Cease to Act. The Minister had also attempted to contact him, but to no avail. Ultimately, her Honour considered that the applicant had been given ample notice of the case management hearing, and his failure to attend constituted failure to prosecute the proceedings with due diligence. Her Honour said:

[15]    I am satisfied based on the evidence before me that the applicant has failed to attend a hearing in the proceeding, namely the case management hearing listed today, of which he has had sufficient notice and has failed to prosecute the proceedings with due diligence. It is clear, given the applicant’s lack of response to the Minister’s attempts to contact him, that the applicant does not intend to prosecute his applications.

19    Similar sentiments apply in these proceedings. YRPQ has had numerous opportunities to pursue this application and has failed to do so. The Court has secured for him the benefit of pro bono legal assistance, which he has not sought to utilise. Moreover, the repeated return of the matter to the Court for case management hearings occasions unnecessary expense for the Minister.

Conclusion

20    In the circumstances, this matter has not been prosecuted with any diligence or, indeed, at all. The order of the Court should be that the application is dismissed for want of prosecution, and the Minister ought to be entitled to an order for costs.

21    One additional matter worth mentioning is that the failure of YRPQ to engage with the solicitors and counsel who had offered to appear pro bono undermines the Court’s ability to attract people to engage in that process. The Court is enormously assisted by legal practitioners who are prepared to offer their services for free, and the conduct of YRPQ in this case tends to incinerate the goodwill that the profession offers the Court to provide assistance to those who cannot afford legal representation.

Note

22    These are the amended and revised reasons for judgment given on 17 June 2026. Whilst the reasons given above refine and develop those that were delivered ex tempore, the substance of what was said that day has not been changed nor has any other material change been made.

Associate:    

Dated:    25 June 2026