Background
BWP18, a Malaysian citizen, applied for a subclass 866 protection visa in February 2016. A delegate of the Minister refused the application in June 2016, and the Administrative Appeals Tribunal affirmed that refusal in September 2017. In April 2018 — some 177 days out of time — the applicant filed in the Federal Circuit Court seeking an extension of time to apply for judicial review of the Tribunal’s decision.
That substantive application languished until August 2023, when a Registrar of the Federal Circuit and Family Court of Australia (Division 2) dismissed it after the applicant failed to appear at a callover. The applicant sought reinstatement, which a Registrar dismissed in November 2023. A judge of that court then dismissed the applicant’s review of the Registrar’s decision in December 2023, having first granted a short extension of time to bring it.
In February 2024, the applicant filed in the Federal Court of Australia seeking an extension of time to apply for leave to appeal against that judge’s orders. The hearing was listed for 17 June 2026. The court’s chambers received a bounce-back from the applicant’s primary email address but, after the respondent’s solicitor provided an alternative address, further communications were exchanged — including a substantive email from the applicant on 11 June 2026 setting out arguments on leave, permission to appeal, and a proposed new ground. The court confirmed on 12 June 2026 that the hearing would proceed in person.
The Court’s Holding
Justice Neskovcin dismissed the proceeding under rule 30.21(1)(a)(i) of the Federal Court Rules 2011 (Cth), which empowers the court to dismiss a matter when the applicant fails to appear when it is called on for hearing. The respondent’s solicitor appeared and sought dismissal on that basis.
His Honour was satisfied that the power to dismiss was enlivened and that the discretion to exercise it was abundantly justified. The applicant had actual notice of the listing — confirmed in writing as recently as 12 June 2026 — and had themselves engaged with the court by email just days before the hearing. No explanation for the non-appearance was offered. The court ordered that the applicant pay the first respondent’s costs.
Key Takeaways
- A Federal Court proceeding may be dismissed for default of appearance under r 30.21(1)(a)(i) of the Federal Court Rules 2011 where the applicant, having received clear and confirmed notice of the hearing date, simply does not attend.
- Prior engagement with the court — including substantive written submissions filed days before the hearing — does not substitute for personal attendance at an in-person hearing when attendance has been confirmed as required.
- The decision underscores the cumulative procedural difficulty facing this applicant: the underlying protection visa claim had already been filtered through a delegate, the AAT, two Registrar decisions, and a Federal Circuit Court judge before reaching the Federal Court, with repeated non-appearances contributing to each dismissal.
Why It Matters
This case is a reminder that migration applicants seeking to challenge visa refusals face strict procedural obligations throughout the court hierarchy. Failures to appear — even where there has been recent written contact with the court — will ordinarily result in dismissal with costs, and the discretion to dismiss is readily exercised once the power is enlivened.
For practitioners, the decision illustrates how a chain of procedural defaults can foreclose substantive arguments entirely: BWP18’s underlying grounds for appeal, including a proposed new ground not raised before the Tribunal, were never considered on the merits because the applicant did not attend to advance them.