Federal Court of Australia

Liu v Minister for Immigration and Citizenship (No 2) [2026] FCA 876

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application:

(a)    to set aside orders of the Court on 23 March 2026 which dismissed the application for an extension of time and leave to appeal; and

(b)    to reinstate the application for an extension of time and leave to appeal;

is dismissed.

2.    The applicant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, Ms Hongxiu Liu, applies to set aside orders of the Court dismissing her application for an extension of time and leave to appeal (leave application), and for her leave application to be reinstated (reinstatement application). The leave application was dismissed on 23 March 2026 pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), due to the applicant’s failure to attend the hearing on that day: Liu v Minister for Immigration and Citizenship [2026] FCA 329.

2    By her leave application, the applicant sought to appeal against a decision of the Federal Circuit and Family Court of Australia (Division 2) refusing to reinstate an application for judicial review filed on 16 November 2017 (judicial review application).

3    The judicial review application related to a decision of the then Administrative Appeals Tribunal on 24 October 2017, which affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa. The Tribunal found that the applicant did not meet the requirements for the partner visa because the applicant’s relationship with her sponsor had ceased, and the applicant had not provided the statutory declaration required to make a valid claim of family violence under reg 1.25 of the Migration Regulations 1994 (Cth), that being a mandatory requirement under the regulations.

4    On 1 May 2026, the applicant filed her reinstatement application and a supporting affidavit, pursuant to r 35.33(2)(a) of the Rules. The Minister opposes the reinstatement application.

5    On 29 May 2026, a Registrar made timetabling orders for the filing of written submissions by the Minister and the applicant. The applicant has not filed submissions on the reinstatement application or the leave application. Written submissions were filed by the Minister in accordance with that timetable in opposition to the reinstatement application. The Minister also relied upon his submissions on the leave application filed prior to the hearing on 23 March 2026 both in opposition to the reinstatement application and, if the leave application were reinstated, in opposition to the leave application itself.

6    At the hearing, which the applicant attended remotely via audiovisual link, the applicant made submissions with the assistance of an interpreter in Mandarin and English. The applicant also had a friend present, who was able to provide her with support during the hearing about matters that were clearly very distressing to her.

7    The applicant’s submissions addressed the merits of her application for her partner visa, including her relationship with her former partner, her allegations of family violence, and the circumstances in which her relationship ended. However, as I explained at the hearing and the Minister submitted, the jurisdiction of this Court and of the Circuit Court do not extend to a consideration of the merits of the applicant’s visa application. The Circuit Court (as the primary judge also explained) was limited to considering whether the Tribunal’s decision was made lawfully under the Migration Act 1958 (Cth) (that is, whether a jurisdictional error exists in the Tribunal’s decision). It did not have the power to decide whether, for example, the applicant met the criteria for the grant of a visa or to grant the visa. That was the task of the Tribunal. As such, if the applicant had been successful in the Circuit Court, the Circuit Court would have remitted her application back to the Tribunal to decide whether to grant her the visa. The same limitations apply to any decision by this Court on an appeal. However, the focus on any appeal from the Circuit Court would be on the question of whether the Circuit Court made an error in dismissing the applicant’s application for review of the Tribunal’s decision: see e.g. SZUPD v Minister for Immigration and Citizenship [2026] FCA 696 at [61] (Perry J).

2.    THE REINSTATEMENT APPLICATION

2.1    Relevant principles

8    The factors relevant to whether an order should be made to reinstate the proceedings include whether the absent party has provided an acceptable explanation for that party’s absence at the hearing, and the strength of the applicant’s case: SZVEB v Minister for Immigration and Border Protection (No 2) [2015] FCA 1106 at [3] (Farrell J).

2.2    Has an acceptable explanation been given for the applicant’s failure to attend the hearing of her leave application?

9    Turning to the first of these considerations, the Minister conveniently summarises at [6]-[9] the background to the reinstatement application:

On 12 December 2025, the Court notified the parties, by way of email, that the matter had been listed for hearing on 23 March 2026 at 10:15am (AEDT) before the Honourable Justice Perry (the listing notice). The listing notice was sent to the address listed on the applicant’s application for an extension of time and leave to appeal … (the applicant’s nominated email address), which was the most recent email address provided by the applicant in connection with the proceedings.

On 6 March 2026, the Court sent a further email to the parties which reminded them of the hearing date and time and informed the parties that “orders determining the matter (including an order as to costs) may be made in your absence if you or your lawyer do not attend Court at the specified time”. This email was also sent to the applicant’s nominated email address.

On 20 March 2026, the Court sent an email to the parties which provided a Microsoft Teams link which could be used by the applicant to appear remotely, if she wished to do so instead of attending the hearing in-person. This email was also sent to the applicant’s nominated email address.

On 23 March 2026, the applicant failed to attend the scheduled hearing and the Court made orders dismissing the substantive application with costs.

10    The applicant gave evidence in her affidavit filed on 1 May 2026 that “I missed my hearing on 21 March 2026 as I didn’t receive any notification.”

11    The Minister submits that this explanation is plainly unsatisfactory. The applicant was notified of the hearing by way of an email from the Court sent to her (then) nominated email address, and reminded of the hearing and the consequences for non-attendance in a further email from the Court. To the extent that the applicant did not read these emails and was accordingly unaware of the hearing, it was her responsibility to check her emails to ensure she was aware of the status of the application that she had lodged.

12    I note that the reinstatement application includes a new email address for service, which is different from the email address provided in her application for an extension of time and leave to appeal. It may be inferred from the applicant’s use of a new email address that the applicant’s nominated email address was no longer current at the time of the Court’s correspondence notifying her of the hearing.

13    Even if this inference is correct, I agree with the Minister’s submissions that it was the applicant’s responsibility to update her email address with the Court and the solicitors for the Minister in the event that it had changed, and no explanation has been provided as to why the applicant failed to do so. Nonetheless, while this consideration weighs in favour of dismissal of the reinstatement application, on balance, in my view, the central issue on the reinstatement application is whether the applicant’s substantive application seeking an extension of time and leave to appeal has any reasonable prospects of success.

2.3    Does the leave application have any reasonable prospects of success?

14    Leave to appeal is required because the Circuit Court’s order dismissing an application to reinstate proceedings is interlocutory in nature: Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [3] (Pagone J). An extension of time is required because the leave application was filed eight days after the 14-day period prescribed by r 35.13 of the Rules.

15    In refusing to reinstate the judicial review application, the Circuit Court accepted the applicant’s explanation for her non-attendance at a previous Circuit Court hearing but held that the grounds pleaded in the judicial review application did not have sufficient prospects of success. The applicant’s draft notice of appeal, which was lodged with her leave application on 20 July 2022, advances four grounds of appeal against the latter finding.

16    The decision to grant an extension of time is a discretionary one: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28] (Foster J). Relevant considerations for the Court include:

(1)    the length of the delay;

(2)    the explanation for the delay;

(3)    any prejudice to the respondent (even though the absence of prejudice to the respondent is not in itself determinative); and

(4)    the merit of the proposed appeal, that is, whether any appeal would have reasonable prospects of success, which is generally assessed from an impressionistic perspective.

(See BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 at [17] (Burley J).)

17    For the reasons set out below, the applicant’s leave application does not have reasonable prospects of success.

18    First, while the delay is only 8 days and therefore short, the applicant did not file any material explaining her delay in filing the leave application. Nonetheless, if the application had merit, I would not give this any real weight particularly where the Minister does not contend that he has suffered any prejudice by reason of the delay.

19    Secondly, the proposed grounds of appeal do not identify any error in the primary judge’s finding that there was no jurisdictional error in the Tribunal’s decision to affirm the decision of the delegate. None of the grounds on their face would appear to have any merit.

20    Proposed ground 1 contends that the Tribunal made a “mistake…regarding the fact that I suffered from family violence”, and “failed to give me the opportunity to provide the statutory declaration”. In order for the Tribunal to determine whether a non-judicially determined claim of family violence was made out, regs 1.23(9)(c) and 1.24 required the applicant to give evidence regarding her family violence claim in accordance with reg 1.25(1) of the Migration Regulations, that is, in the form of a statutory declaration by her or on her behalf as the alleged victim, as the primary judge held at [62].

21    Despite the Tribunal stating that it advised the applicant that in order to further her claim, she was required to provide necessary evidence, and the applicant being given an opportunity to do so after the Tribunal hearing (as recorded in the Tribunal’s reasons at [4]), the applicant did not provide the statutory declaration. As the primary judge held, the social worker’s statutory declaration would not have been sufficient because it was not a statutory declaration from the applicant, as the alleged victim. This means that the applicant could not satisfy a mandatory criterion for the grant of the visa and therefore the Tribunal could not grant the visa. In other words, the Tribunal could not find that there was family violence without the statutory declaration. It follows that the primary judge was right to find that the applicant’s attempt to rely upon other evidence in support of her claim to be a victim of family violence was not arguable. I agree with the primary judge at [68] that the requirement to provide such a statutory declaration “was not a standard set by the Tribunal. It is a requirement set by the [Migration] Regulations, and the Tribunal was not incorrect to find that, in the absence of the statutory declaration, a valid claim (valid in the sense of complying with the [Migration] Regulations) had not been made.”

22    Proposed ground 2 takes issue with a “dob-in” letter provided to the Tribunal. The Tribunal did not place any adverse weight on that letter (as the primary judge held) because the identity and motivation of the dob-in informer could not be verified. Furthermore, the applicant was afforded an opportunity to comment on the letter at the hearing and in writing after the hearing, which she did in writing on 10 May 2017. This means that ground 2 also lacks any merit.

23    Proposed ground 3 is a bare assertion that the Circuit Court’s decision not to reinstate the judicial review application is “not in the best interests of … justice”. As such, it does not raise any particular error.

24    Proposed ground 4 takes issue with the brevity of the Tribunal’s reasons and suggests the Tribunal should have considered the genuineness of the applicant’s previous relationship with her sponsor contrary to the primary judge’s findings. However, given the Tribunal’s finding that the applicant was no longer in a relationship with the sponsor, and that no valid family violence claim had been made, there is no error in the primary judge’s finding that there was no arguable case that the Tribunal was required to consider the previous relationship any further. In the context of the failure by the applicant to provide the personal statutory declaration required by the Migration Regulations, it is not surprising that the Tribunal’s reasons were brief.

3.    OTHER MATTERS

25    Finally, as I mentioned at the hearing, there were aspects of this matter which raised concerns.

26    First, although the applicant did not provide a personal statutory declaration alleging family violence in accordance with the mandatory requirements in the regulations, she did provide the Tribunal with a report from a registered psychologist who interviewed the applicant on 24 January 2017, and a statutory declaration from a social worker at Western Sydney Sexual Health Centre who had met the applicant in December 2015 and January 2016. Both the psychologist and the social worker opined that the applicant’s presentation and narrative were consistent with her having been subjected to domestic violence by her sponsoring partner.

27    Secondly, it is concerning that the applicant did not provide a personal statutory declaration to the Tribunal as required by the Migration Regulations in circumstances where she was represented by a solicitor in the Tribunal proceedings, the issue of necessary evidence for a valid claim of family violence was raised at the Tribunal hearing on 27 April 2017, and the applicant’s solicitor provided a post-hearing submission to the Tribunal.

28    In view of the above, at the hearing I asked the Minister’s solicitor (who kindly agreed) to provide the applicant with a list of organisations from which she may be able to obtain legal advice as to whether there were any further avenues outside these proceedings which might be available to her.

4.    CONCLUSION

29    In circumstances where no adequate explanation has been given for the applicant’s failure to attend the hearing of her leave application on 23 March 2026 and the leave application lacks any reasonable prospects of success, the application to set aside orders of the Court dismissing her leave application and to reinstate that application should be dismissed. As the applicant has been wholly unsuccessful, an order should be made for the applicant to pay the first respondent’s legal costs.

Associate:

Dated:    9 July 2026