Federal Court of Australia

DJB24 v Minister for Immigration and Citizenship [2026] FCA 836

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 36.74(1)(c) of the Federal Court Rules 2011 (Cth) the appeal is dismissed.

2.    The appellant do pay the first respondent's costs fixed at $2,500.

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

COLVIN J:

1    The appellant in these proceedings arrived in Australia in 2012. He applied for a protection visa in 2017. In 2019, his application for a protection visa was refused. He sought review in the Administrative Appeals Tribunal. In 2024, his application was refused. He then applied to the Federal Circuit and Family Court of Australia (Division 2) for review of the Tribunal's decision on the basis of alleged jurisdictional error. His application was refused in November 2024. The appellant commenced an appeal against that decision on 27 November 2024. The appellant's notice of appeal specified an email address and a residential address for service.

2    Directions were made as to the conduct of the appeal. In December 2024, the Minister sent the appeal book to the email address specified in the notice of appeal. The email informed the appellant that the matter 'has not been listed for hearing yet'. It said that he would be notified once it had been listed.

3    On 28 May 2026, an email was sent to the parties informing them that a case management hearing had been listed for 9.15am AWST on 25 June 2026. The email was sent to the email address. It requested acknowledgment of receipt. No acknowledgment was forthcoming. There has been no communication by the appellant with my associate since then.

4    Prior to the case management hearing, I reviewed the reasons of the Tribunal, the reasons of the primary judge and the notice of appeal. I did so for the purpose of considering any case management directions that may be appropriate for the conduct of the appeal.

5    At the case management hearing on 25 June 2026, there was no appearance for the appellant. The proceedings were called three times by the court officer in the precinct of the Court and there was still no appearance. The Minister moved for orders that the appeal be dismissed with costs.

6    The Minister relied upon email communications to the following effect in support of that application:

(1)    an email sent on 28 May 2026 by the solicitors for the Minister to the appellant at the email address indicating that if the appellant did not appear at the case management hearing the Minister would apply for orders to dismiss the appeal with costs;

(2)    an email sent on 16 June 2026 by the solicitors for the Minister to my associate and copied to the appellant again stating that if the appellant did not appear at the case management hearing on 25 June 2026 that the Minister would apply for orders to dismiss the appeal with costs;

(3)    an email sent on 2 October 2025 by the solicitors for the Minister to the appellant at the email address with the subject heading being 'DJB24 v Minister for Immigration and Citizenship & Anor WAD350/2024' attaching an updated notice of address for service for the Minister;

(4)    an email apparently from the appellant to the solicitors for the Minister sent from the email address on 3 October 2025 stating 'Hi thanks for email. So when my hearing' and signed with the appellant's name; and

(5)    an email sent on 7 October 2025 from the solicitors for the Minister to the appellant at the email address stating 'Thank you for your email. Your matter has not yet been listed for hearing. The Court will notify the parties once a listing date has been allocated'.

7    For the following reasons, I made orders dismissing the appeal and fixing costs in the amount of $2,500. I also made a formal order correcting the name of the Minister.

8    The appellant had been notified of the case management hearing at the email address being the address notified in his notice of appeal as an address for service. The Minister had sent two emails to the appellant at the email address referring to the case management hearing and notifying that the Minister would move for orders dismissing the appeal with no order as to costs if there was no appearance. Almost a year after the appeal was commenced, the appellant had responded to an email sent by the Minister to the email address. At that time, the appellant had been informed that the Court would notify the parties once a listing date had been set. That is what occurred when the email was sent notifying the appellant of the case management hearing.

9    Rule 36.74(1)(c) of the Federal Court Rules 2011 (Cth) provides that a respondent to an appeal may apply for an order that an appeal be dismissed for the failure by an appellant to attend a hearing relating to the appeal. It requires the application to be served at the appellant's address for service. I regarded the email communications by the Minister to the appellant at the email address to be substantial compliance with that requirement.

10    I also considered whether it was appropriate for a further opportunity to be given to the appellant to appear or whether some further notice should be given to the appellant before contemplating the making of an order dismissing the appeal for failure to attend. Although the Minister made no submission as to the merits of the appeal as disclosed by the notice of appeal and the application book as filed, I considered those matters to be relevant to considering whether it was in the interests of justice for the order sought to be made.

11    As to the merits of the appeal, I considered the following matters to be of significance:

(1)    before the Tribunal the appellant was represented;

(2)    before the Tribunal the appellant relied upon a letter which had been before the delegate (Letter A) and a further letter said to be from a person who could support the claims made by the appellant (Letter B);

(3)    the claims made by the appellant in support of his protection visa application depended upon the credibility of his own account;

(4)    as to Letter A, the Tribunal gave reasons as to why the Tribunal was not prepared to place any weight on the letter;

(5)    as to Letter B, the Tribunal found that its contents were supportive of the appellant's claims and evidence but did not 'rehabilitate [the Tribunal's] concerns about the credibility and reliability of the [appellant's] claims';

(6)    as to the credibility of the appellant's account, the Tribunal gave detailed reasons as to inconsistencies in the appellant's account. The Tribunal also found that there was unexplained delay by the appellant in applying for a protection visa. The Tribunal was 'readily satisfied that the [appellant] applied for protection because he had exhausted his visa options in Australia and instead fabricated a narrative to claim protection'. On the basis of that detailed reasoning the Tribunal did not accept the matters advanced as the basis for the protection visa;

(7)    before the primary judge, the appellant was self-represented and was assisted by an interpreter;

(8)    the grounds of review advanced by the appellant were to the effect that the Tribunal's findings were not open and that the provisions of the Migration Act as to when a person would be refugee were incorrectly applied;

(9)    the primary judge reasoned as follows (at [36]-[39]):

The Tribunal decision sets out in significant detail the claims made by the applicant together with the reasons why the Tribunal was not prepared to accept the applicant’s evidence. This included significant concerns as to his credibility, based on inconsistent evidence in relation to a number of matters, for example in relation to his employment at [53]. It is well established that the Tribunal enjoys an advantage of fact to test the veracity of the evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62] per Nettle J.

The Court is satisfied that the Tribunal’s ultimate findings were open to it on the evidence that was before it and for the reasons it gave. There is nothing illogical, irrational, or legally unreasonable in these findings. The Tribunal set out in considerable detail the inconsistencies in the applicant’s evidence and how this led it to disbelieve the applicant’s claims.

The Court is not satisfied there was any incorrect application by the Tribunal of s 5H(1)(a).

…

None of the matters raised by the applicant in his oral submissions went to the question of jurisdictional error, rather they went to the merits of the matter.

(10)    The notice of appeal in this Court alleges that the primary judge 'failed to address the error by the Tribunal in ignoring all relevant material in arriving at its decision, in particular failing to give due regard to [Letter A and Letter B]'

12    The Tribunal's decision rested upon its considered rejection of Letter A and its express finding that Letter B was not a basis upon which to rehabilitate the Tribunal's concerns as to the credibility of the appellant's account. Those reasons were detailed and dealt with matters of inconsistency in the appellant's account to the Tribunal and the absence of any explanation for the delay in applying for a protection visa.

13    In the above circumstances, it is plain that the proceedings before the primary judge were no more than a vain attempt to persuade the primary judge to make a decision on the merits that was contrary to the findings by the Tribunal. In substance, it was not an application to review for jurisdictional error. The same may be said of the matters referred to in the appeal grounds. They do not articulate a recognisable form of error by the primary judge. Rather they allege, in effect, that the primary judge should have upheld a ground of review (not advanced before the primary judge) to the effect that the Tribunal failed to consider relevant material, being Letter A and Letter B. Even assuming leave might be given to raise that point on appeal, in circumstances where the Tribunal's decision rests upon its reasoned rejection of the credibility of the account given by the appellant after a hearing where the appellant was represented, and dealt expressly with each of Letter A and Letter B there is no apparent basis for any reasonable argument to be advanced that would impugn those findings. Accordingly, the appeal was obviously without merit.

14    I formed the view that these matters weighed strongly against adjournment or further delay in the conduct of the appeal in circumstances where there was no appearance by the appellant at the case management hearing notice of which had been given to the appellant at the email address.

15    For those reasons, I made the orders sought by the Minister.

Associate:

Dated:    26 June 2026