DKT18 v Minister for Immigration and Citizenship [2026] FCA 446

Original Word Document (73.9 KB) Federal Court of Australia

DKT18 v Minister for Immigration and Citizenship [2026] FCA 446

| Appeal from: | DKT18 v Minister for Immigration & Anor [2019] FCCA 2485 |
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| File number: | NSD 1122 of 2021 |
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| Judgment of: | STEWART J |
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| Date of judgment: | 16 April 2026 |
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| Catchwords: | MIGRATION – protection visa application – refused – application for review dismissed by Administrative Appeals Tribunal – application for judicial review brought out of time – extension of time refused and application dismissed by Federal Circuit Court – application for extension of time to appeal brought over two years out of time with no explanation – where applicant in default in numerous ways including on appearance at hearing – application dismissed |
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| Legislation: | Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), ss 476A(3)(a), 477(2)

Federal Court Rules 2011 (Cth), rr 5.23(1)(b), 36.03(a), 36.11(2)(j)(ii) |
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| Cases cited: | DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; 268 FCR 64

EIW20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1514

Kumar v Minister for Immigration and Citizenship [2025] FCA 716

Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 13 |
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| Date of hearing: | 16 April 2026 |
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| Counsel for the Applicant: | The applicant did not appear |
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| Solicitor for the Respondents: | A Sharma of HWLE Lawyers |
ORDERS

| | | NSD 1122 of 2021 |
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| BETWEEN: | DKT18

Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | STEWART J |
| DATE OF ORDER: | 16 APRIL 2026 |
THE COURT ORDERS THAT:

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

2. The proceeding be dismissed with costs.

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

REASONS FOR JUDGMENT

(delivered ex tempore; revised from the transcript)

STEWART J:

1 This is an application for an extension of time to appeal against the orders of a judge of the Federal Circuit Court of Australia. The primary judge dismissed an application for an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal.

2 So far as is relevant, the background is as follows.

3 In March 2017, a delegate of the Minister for Immigration and Border Protection rejected the applicant’s protection visa application.

4 In September 2017, the tribunal affirmed the delegate’s decision.

5 The applicant made an application for judicial review of the tribunal’s decision as well as an application for an extension of time in the Federal Circuit Court in July 2018. On 4 September 2019, the primary judge dismissed the application for an extension of time.

6 On 22 October 2021, the applicant applied for an extension of time to appeal to this Court from the decision of the primary judge. The application was brought more than two years outside the applicable 28-day time limit: Federal Court Rules 2011 (Cth) (FCR) r 36.03(a). Needless to say, that is an extreme delay.

7 The applicant is in default in many respects. The Court’s orders of 25 January 2022 required the applicant to file and serve a written outline of submissions no later than 10 business days prior to the hearing. He has failed to do so. The applicant is also in default of appearance on the hearing of his application. In this regard, on 19 December 2025, the applicant was advised by email, sent to the email address given by him in his application for the receipt of communications in the matter, that the matter was listed for hearing at 10:15am on 16 April 2026, ie today. Receipt of that email was confirmed by the first respondent but not by the applicant. Subsequent email communications were also sent to the applicant at this nominated email address. Neither the Court nor the first respondent has received any response from the applicant.

8 The evidence is that the applicant left Australia in September 2025. He has not returned, and has no present right of return. He could nevertheless have appeared remotely today, but he has failed to request such an opportunity. He has apparently abandoned the proceeding.

9 In any event, the application for an extension of time appears to have no merit. The delay is very considerable and not adequately explained, and the proposed grounds of appeal are entirely unparticularised and misconceived.

10 On the application of the Minister, I will therefore dismiss the application under FCR r 36.11(2)(j)(ii) because of the applicant’s failure to attend a hearing relating to the appeal, being the hearing of his application for an extension of time in which to appeal.

11 In any event, the proposed appeal is incompetent. Under s 476A(3)(a) of the Migration Act 1958 (Cth) as it was worded at the relevant time (being September 2019), the applicant has no right of appeal to the Federal Court from a judgment of the Federal Circuit Court refusing to make an order under s 477(2), ie an order refusing an extension of time such as that made by the primary judge. However, as was accepted by the Minister (with reference to Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at [10]-[11] per Rares, Perram and Wigney JJ), it would be open to the Court to treat the proposed “appeal” as an application for judicial review of the primary judge’s decision under s 39B of the Judiciary Act 1903 (Cth). The Court may be inclined to do so where, as here, the applicant is a litigant in person: see Kumar v Minister for Immigration and Citizenship [2025] FCA 716 at [36]-[42] per Hill J; EIW20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1514 at [21] per Feutrill J. That would require the applicant to identify jurisdictional error: DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; 268 FCR 64 at [58] per Rangiah J (Reeves and Bromwich JJ agreeing).

12 Treating the application on that basis, I would nonetheless dismiss the application under FCR r 5.23(1)(b) because of the applicant’s many defaults referred to above and because there is no apparent merit in the posited judicial review application.

13 I therefore dismiss the application with costs.

| I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. |
Associate:

Dated: 16 April 2026

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