Federal Court of Australia

BPK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 1508

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

MCEVOY J:

1    In this proceeding the appellant appeals from orders of the Federal Circuit and Family Court of Australia (Division 2) dismissing her application for judicial review of a decision of the then Administrative Appeals Tribunal: BPK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 371. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, not to grant the appellant a Protection (Class XA) visa.

2    The appellant did not appear when the matter was called on for hearing. In these circumstances, the Minister applied for an order that the appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) (Rules). For the reasons that follow, I consider that it is appropriate to make such an order.

BACKGROUND

3    The appellant is a national of Egypt who arrived in Australia as the holder of a Visitor (subclass 600) visa on 23 January 2014. That visa was valid for three months and was for the purposes of the appellant visiting her daughter in Australia. On 6 March 2014, the appellant applied for a protection visa. On 14 December 2015, a delegate of the Minister refused to grant the applicant the protection visa on the basis that the delegate was not satisfied that the appellant is a person to whom Australia has protection obligations pursuant to s 36 of the Migration Act 1958 (Cth) (Migration Act) and cl 866.221 of Sch 2 of the Migration Regulations 1994 (Cth) (Migration Regulations). On 24 March 2017, the Tribunal affirmed the delegate’s decision, and on 27 March 2017 it published a written record of its decision and reasons.

4    The appellant applied for judicial review of the Tribunal’s decision, which was heard by the primary judge on 4 October 2021. On 11 May 2023, her Honour made orders dismissing the application.

5    On 7 June 2023, the appellant filed a notice of appeal to this court. As required, the appellant, who was at that time a litigant in person, provided an email address and a physical address as her address for service.

6    On 9 June 2023, a registrar of this court made orders which, amongst other things, enabled the appellant to file an amended notice of appeal. The appellant’s amended notice of appeal was accepted for filing on 6 July 2023.

7    At that time the appellant also filed a notice of address for service informing the court that she was represented by Victoria Legal Aid.

8    On 11 May 2026, my chambers informed the parties that the appeal was listed for hearing on 11 September 2026, doing so by email to their respective legal representatives.

9    On 21 July 2026, with the consent of the appellant’s representative, the Minister’s legal representative wrote to the court to request the matter be listed for case management hearing. The communication explained that the request was made in circumstances where the appellant had departed Australia on 18 April 2026 and does not hold a visa permitting return travel to Australia. The communication also noted that the appellant’s representatives had informed the Minister’s representative that they had been unable to make contact with the appellant or her family since the matter was listed for final hearing on 11 May 2026.

10    The matter was subsequently listed for case management hearing on 7 August 2026. Notice of this listing was communicated to the parties’ legal representatives by email on 22 July 2026.

11    On 3 August 2026, the appellant’s representatives wrote to the court by email advising that in circumstances where they had been unable to contact the appellant for some time they had served a notice of intention to cease acting on the appellant that day, and they did not propose to attend the case management hearing on 7 August 2026.

12    As expected, there was no appearance on behalf of the appellant at the case management hearing on 7 August 2026. The Minister sought orders that the appeal be dismissed for non-appearance pursuant s 25(2B)(bb)(ii) of the FCA Act or, alternatively, that the appeal be dismissed for want of prosecution pursuant to s 25(2B)(ba) of the FCA Act, relying on the decisions of Stewart J in FBD19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 445 and Murphy J in CPJ15 v Minister for Immigration and Border Protection [2018] FCA 1813. I declined to dismiss the appeal at a case management hearing.

13    On 24 August 2026, Victoria Legal Aid filed a notice of ceasing to act which confirmed the appellant’s last known email address.

14    On 25 August 2026, I directed my Associate to write to the parties to advise that, in circumstances where the appellant was now a self-represented litigant, I proposed to adjourn the hearing of the appeal listed on 11 September 2026, and relist it on 9 October 2026. This communication was sent by email to both the last known email address for the appellant as confirmed by the Minister’s representative, and to the last known email address confirmed by Victoria Legal Aid in its notice of ceasing to act. The parties were asked to confirm their availability on the proposed listing date. No response was received from the appellant.

15    On 11 September 2026, my chambers confirmed by email to the parties that in the absence of any notice of discontinuance, consent orders or interlocutory application, the appeal was listed for hearing at 2:15pm on 9 October 2026. The appellant was advised that the matter may proceed in her absence if she did not respond to the court’s communications, and if she failed to attend the hearing.

16    On 2 October 2026, my chambers wrote to the parties again, noting that no written submissions had been filed by the appellant in accordance with orders dated 9 June 2023, and that if the appellant intended to pursue the appeal she should file any written submissions as soon as possible. This communication also noted that the court may make orders to determine the matter (including an order as to costs) in the appellant’s absence.

CONSIDERATION

17    Rule 36.75(1)(a)(i) of the Rules relevantly provides that if the appellant is absent when an appeal is called on for hearing, the opposing party may apply to the court for an order that the appeal be dismissed. The power to make such an order is derived from s 25(2B)(bb)(ii) of the FCA Act, which provides that a judge may make an order that an appeal be dismissed for failure of the appellant to attend a hearing relating to the appeal. As I have mentioned, the Minister seeks such an order.

18    The appellant has not filed any document in support of her appeal since 2023. Nor has she filed any written outline of submissions. She is therefore in default of the orders dated 9 June 2023.

19    The appellant has not responded to any of the court’s recent communications regarding the appeal hearing and, as I have said, she was not present when the appeal was called. I am satisfied from the email correspondence that the appellant was adequately notified of the hearing date for the appeal.

20    In determining to make an order based on failure to attend the hearing, it is also relevant to have regard to the appellant’s absence from Australia.

21    The Minister relies on the affidavit of an Australian Government Solicitor lawyer, Mr Adam James Slevison, affirmed on 6 August 2026. That affidavit annexes records of certain records held by the Department of Home Affairs showing that the appellant departed Australia on 18 April 2026, and that she does not hold a visa that would enable her lawfully to return to Australia. The Minister submits, and I accept, that as the appellant is outside Australia and has no realistic prospect of being permitted to return to Australia in the future, she cannot satisfy the criteria for the grant of a protection visa: Migration Act ss 36(2)(a), 36(2)(aa); Migration Regulations Sch 2 cl 866.411. In these circumstances the Minister correctly submits that the grant of any relief in this appeal would be futile and that the appeal is moot: see FCB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 587 at [12] (Horan J) and the authorities there cited (namely, AFJ16 v Minister for Immigration and Border Protection [2017] FCA 523 at [18]–[21] (White J); Tchoylak v Minister for Immigration and Multicultural Affairs [2001] FCA 872; 111 FCR 302 at [44] (Hill, Carr and Weinberg JJ); and Bolea v Minister for Immigration and Multicultural Affairs [2001] FCA 1129; 113 FCR 387 at [13] (Hill J)).

22    In circumstances where the appellant did not appear and even if she had appeared the appeal would be moot, I am satisfied that the appellant has abandoned the appeal and it is appropriate to make an order that the appeal be dismissed with costs.

Associate:

Dated:    12 October 2026