Background
AVH24, an unrepresented applicant, sought an extension of time to file a notice of appeal from Federal Circuit and Family Court orders dismissing his application for judicial review of a migration decision. The primary judge had found no jurisdictional error by the former Administrative Appeals Tribunal.
The extension-of-time application was filed 19 days late. After returning a signed litigant-in-person acknowledgement form in May 2026, AVH24 did not provide the submissions required by the registrar’s programming orders or otherwise communicate with the Court.
The Court and the Minister notified AVH24 of the hearing date several times, including by email and letter. The Minister warned that dismissal with costs would be sought if he did not appear. AVH24 nevertheless failed to attend the hearing and had not supplied submissions explaining the grounds of his extension application or proposed appeal.
The Court’s Holding
Justice Banks-Smith dismissed the application for an extension of time. Although the Minister sought dismissal under r 36.75 of the Federal Court Rules 2011 (Cth), the Court held that this rule authorizes dismissal of an appeal for failure to appear, not dismissal of an application for additional time to file a notice of appeal.
The applicable power was instead r 36.74. The Court exercised that power because AVH24 had ceased engaging with the proceeding, failed to attend despite repeated notice, and provided no communications or submissions clarifying the basis of either the extension application or the proposed appeal.
The Court also amended the first respondent’s name to “Minister for Immigration and Citizenship” and ordered AVH24 to pay the Minister’s costs, fixed at $2,800.
Key Takeaways
- An application for an extension of time to file a notice of appeal may be dismissed under r 36.74 when the applicant fails to appear.
- Rule 36.75 concerns dismissal of an appeal for nonappearance and does not supply the power to dismiss an extension-of-time application.
- Failure to comply with programming orders, attend after repeated notice, or explain the proposed grounds supported dismissal of the application.
Why It Matters
The decision distinguishes the procedural rules governing dismissal of an appeal from those governing dismissal of an application for more time to commence one. It also shows that even an unrepresented litigant must engage with the proceeding, comply with directions, and attend a properly notified hearing.