Federal Court of Australia

BAH21 v Minister for Immigration and Citizenship [2026] FCA 1516

ORDERS

THE COURT ORDERS THAT:

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

2.    The application for an extension of time filed on 9 February 2024 be refused.

3.    The applicant pay the first respondent’s costs fixed in the amount of $5,000.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant seeks an extension of time to file a notice of appeal from the orders of the Federal Circuit and Family Court of Australia made 23 August 2023: BAH21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 753. Her application was filed 142 days out of time.

2    The applicant is unrepresented. Both my chambers and the respondent informed the applicant of the date of this hearing. The applicant has not responded to any Court communications relating to the hearing. Although the evidence before the Court is that the applicant left the country on 25 August 2024, she was formally called at the hearing by a court officer. There was no appearance.

3    The applicant is a citizen of Malaysia. She first arrived in Australia in February 2020 and held an Electronic Travel Authority (Class UD) (Subclass 601) visa.

4    On 4 May 2020 the applicant applied for a Protection (Class XA) (Subclass 866) visa.

5    On 28 January 2021 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs refused to grant the applicant the protection visa.

6    The (then) Administrative Appeals Tribunal dismissed a review application brought by the applicant on the basis that it had been brought out of time and the Tribunal had no jurisdiction to determine the application.

7    The applicant sought judicial review of the Tribunal’s decision by the Federal Circuit and Family Court of Australia. The application was dismissed on the basis that the primary judge found that no jurisdictional error arose on the part of the Tribunal.

8    Pursuant to r 36.03(a) of the Federal Court Rules 2011 (Cth), the applicant had 28 days in which to file a notice of appeal from the primary judge’s orders.

9    The applicant filed an application for an extension of time in which to appeal on 9 February 2024, being (as noted) 142 days after the date of the primary judgment and orders made. The matter was allocated to my docket at the end of May 2026.

10    The applicant has not complied with programming orders relating to the provision of evidence and submissions.

11    An affidavit was filed on behalf of the Minister annexing screenshots and a movement history of the applicant, which indicated that the applicant was ‘offshore’ and had departed Australia on 25 August 2024. At the time of her departure, the applicant held a WE-050 bridging visa. The records in the affidavit indicate that the bridging visa has since ceased and the applicant does not have a right to return to Australia.

12    The Minister submitted that because the applicant is offshore and unable to re-enter Australia, she cannot be granted the protection visa, making the application for an extension of time and any appeal effectively futile. It is a relevant criterion for a protection visa that the applicant must be in Australia: clause 866.411 of Schedule 2 to the Migration Regulations 1994 (Cth).

13    I accept the Minister’s submission that in all the circumstances, the appropriate course is that the application for an extension of time be dismissed.

Associate:

Dated:    13 October 2026