Federal Court of Australia

AKS19 v Minister for Immigration and Citizenship [2026] FCA 1718

ORDERS

THE COURT ORDERS THAT:

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

2.    The name of the second respondent be amended to “Administrative Review Tribunal”.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore and revised)

GOODMAN J:

A.     INTRODUCTION

1    The appellant is a citizen of Bangladesh.

2    He appeals from a decision of the Federal Circuit and Family Court of Australia (Division 2), by which the primary judge dismissed his application for judicial review of a decision made by the (then) Administrative Appeals Tribunal, affirming a decision made by a delegate of the first respondent Minister refusing to grant a protection (subclass 866) visa to the appellant.

3    The Minister applies for the dismissal of the appeal on the basis that the appellant has left Australia with no right of return. The Minister contends that as a consequence the appellant is unable to satisfy the criteria for a protection visa and therefore his appeal is futile.

4    In support of this application, the Minister relies upon the affidavit of Mr Conrad Nicholls, a solicitor in the employ of the Minister’s solicitors. Relevantly, that evidence establishes that: (1) the appellant was granted a bridging visa (subclass 010) on 17 June 2025; (2) that visa ceased on 3 June 2026 and the appellant left Australia on the same day; (3) the appellant has not since returned to Australia; and (4) the appellant does not presently hold any visa which would give him a right to return to Australia.

B.     BACKGROUND

5    In October 2015, the appellant arrived in Australia on a tourist visa and on 5 November 2015, he applied for a protection visa.

6    On 1 July 2016, a delegate of the Minister refused the appellant’s claim for a protection visa on the basis that he was not satisfied that the appellant met the criteria for the grant of such a visa, as set out in s 36 of the Migration Act 1958 (Cth).

7    On 10 January 2019, the Tribunal affirmed the decision of the delegate to refuse the grant of the protection visa; and provided written reasons for doing so.

8    On 17 April 2025, the primary judge dismissed the appellant’s application for judicial review, with costs. The primary judge’s reasons for doing so are set out in AKS19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 561.

9    On 5 May 2025, the appellant filed an appeal in this Court.

10    On 3 June 2026, as noted above, the appellant’s bridging visa expired; and he left Australia on the same day with no present right to return.

11    On 14 October 2026, the solicitors for the Minister notified the Court of the appellant’s departure from Australia and of the Minister’s wish to have the appeal dismissed for futility.

12    On 16 October 2026, I made orders: (1) listing the Minister’s application for dismissal on 12 November 2026; and (2) providing for the parties to file short outlines of submissions in advance of that hearing. Those orders were provided to the parties that day, together with a Webex link for the hearing.

13    The Minister filed an outline of submissions. The appellant did not.

14    The appellant did not appear at the hearing.

C.     Consideration

15    Section 65(1) of the Act provides that the Minister is to refuse to grant an application for a visa if the Minister is not satisfied that, inter alia, the criteria prescribed by the Migration Regulations 1994 (Cth) have been satisfied. Of particular present relevance is the requirement in cl 866.411 of Schedule 2 to the Regulations that the appellant must be in Australia.

16    As the appellant is not in Australia and has no right of return to Australia, he is unable to satisfy the criteria for the grant of a protection visa. It follows that even if the appeal were successful and the matter remitted to the Administrative Review Tribunal (ART), the ART, standing in the shoes of the Minister, must refuse the application. Thus, the appeal has been rendered futile.

17    This result mirrors that reached in a number of analogous earlier cases: see, e.g., Tchoylak v Minister for Immigration and Multicultural Affairs [2001] FCA 872; (2001) 111 FCR 302 at 310 [44] (Hill, Carr and Weinberg JJ); SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; (2014) 233 FCR 279 at 290 [48] (Allsop CJ, Mansfield and Besanko JJ); AFJ16 v Minister for Immigration and Border Protection [2017] FCA 523 at [19] to [22] (White J); CVC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 556 at [25] to [27] (Yates J); CFS17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 831 at [10] (Lee J); EKW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1414 at [22] to [23] (Cheeseman J); ASP24 v Minister for Immigration and Multicultural Affairs [2025] FCA 1448 at [8] to [9] (Jackson J); and FCB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 587 at [12] (Horan J).

d.     CONCLUSION

18    For the foregoing reasons, the appeal has become futile and must be dismissed. There is no apparent reason why costs should not follow the event.

Associate:

Dated:    12 November 2026