DGL19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1020
•9 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DGL19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1020
File number(s): SYG 2215 of 2019 Judgment of: JUDGE MARQUARD Date of judgment: 9 October 2025 Catchwords: MIGRATION - protection visa – application for judicial review of decision of the Administrative Appeals Tribunal – whether jurisdictional error arose due to delay between Tribunal hearing and decision – whether procedural fairness not afforded because of non-disclosure of s438 Certificate – application dismissed Legislation: Australian Constitution s 75(v)
Migration Act 1958 (Cth) ss 5H, 5J, 29, 31, 36, 45, 65, 416, 422B, 424A, 437, 438, 474, 476
Migration Regulations 1994 (Cth)
Cases cited: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
ARB23 v Minister for Immigration & Multicultural Affairs [2025] FedCFamC2G 218
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BPY20 v Minister for Immigration & Multicultural Affairs [2025] FedCFamC2G 487
CCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 167
Djokovic v Minister for Immigration, Citizenship, Migrant Services and MulticulturalAffairs (2022) 289 FCR 21
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17
Hamod v New South Wales [2011] NSWCA 375
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v MZYNN [2012] FCA 117
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu(1999) 197 CLR 611
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
MZYNN v Minister for Immigration & Anor [2012] FMCA 96
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Saha v Minister for Immigration & Multicultural Affairs [2025] FedCFamC2G 1034
Division: Division 2 General Federal Law Number of paragraphs: 113 Date of last submissions: 1 August 2025 Date of hearing: 11 August 2025 Place: Sydney Applicant: The Applicant appeared in person First Respondent: Mr L Dennis of Mills Oakley Second Respondent: Submitting appearances save as to costs ORDERS
SYG 2215 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DGL19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MARQUARD
DATE OF ORDER:
9 OCTOBER 2025
THE COURT ORDERS THAT:
1.The application for review filed on 27 August 2019 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04 of the Rules.
REASONS FOR JUDGMENT
Judge Marquard
OVERVIEW
Before this Court is an application filed on 27 August 2019 seeking judicial review of a decision dated 30 July 2019 of the second respondent, the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of the Department of Immigration and Border Protection (Department), as delegate of the first respondent (the Minister), dated 9 December 2015, to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
The application is dismissed.
BACKGROUND
The applicant is a citizen of Fiji (Court Book (CB) 27). She arrived in Australia on 6 December 2014 as the holder of a three-month Visitor (Class FA) (Subclass 600) visa which was granted on 17 November 2014 and remained in effect until 26 March 2015 (CB 115).
On 2 March 2015, the applicant applied to the Department for the protection visa (CB 1-31).
On 9 December 2015, the Department refused to grant the applicant the protection visa. The Department was not satisfied that the applicant met the criteria for the visa in ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (the Act) (CB 115).
On 18 December 2015, the applicant applied to the Tribunal seeking review of the Department’s decision (CB 122-123).
On 7 March 2016 the Tribunal received from the Department a certificate issued pursuant to s 438 of the Act, prohibiting disclosure of certain information on the Department file which related to an allegation about the applicant (s 438 Certificate) (CB 133).
On 9 January 2017 the applicant through her representative provided to the Tribunal a Statutory Declaration dated 9 January 2017 (Statutory Declaration) (CB 137-147). She attached a number of reports and articles relating to freedom of speech in Fiji, a land bank scheme, and sedition (CB 148-149). In her Statutory Declaration she claimed to fear harm in Fiji based on her political opinion as an ex-government employee with anti-government views (opposition to the land bank scheme and support of native land rights). She also claimed to be a member of the Fiji Native Government in Exile (FNGE) and said she had participated in demonstrations in Australia. She claimed that she had been informed that she was on a watchlist in Fiji.
On 13 February 2018, the Tribunal invited the applicant to attend a hearing (CB 242-243).
On 6 April 2018, the applicant attended the hearing before the Tribunal to give evidence and present arguments (CB 312-314). The Tribunal also took evidence from the founder of FNGE, Ms Kirwin. Further articles were submitted by the applicant.
On 14 May 2018, the applicant wrote to the Tribunal to enquire about applying for a visa to travel overseas for a week to visit relatives in Bali. On 15 May 2018, the Tribunal suggested that she contact the Department for advice (CB 325).
On 31 May 2019, the Tribunal wrote to the applicant, pursuant to s 424A of the Act, inviting her to comment on or respond to information which was the subject of the s 438 Certificate (CB 378-380). This information was an email that the Department had received from a person who identified themselves as a ‘close friend’ of the applicant (CB 378), stating:
She is lying about her claim for protection visa in Australia. Recently on her wall on Facebook she uploaded a photo receiving her renewed Fiji passport via the mail which was renewed by her husband currently in Fiji. The easy renewal of her Fiji passport clearly indicates that she is neither on the watchlist nor any interest to the current Fiji government. If she was a target by the current government I am sure they would have withheld her passport and carried out further investigation.
On 12 June 2019, the applicant provided her response by way of email to the Tribunal (CB 382-387).
On 30 July 2019, the Tribunal affirmed the decision of the Department (CB 398-399).
TRIBUNAL DECISION 30 JULY 2019 [TD] (CB 400-437)
The Tribunal summarised the background to the proceedings (TD [1-2]).
The Tribunal set out the relevant legal and policy framework (TD [3-8]).
The Tribunal summarised the evidence (TD [10-55]).
Protection Claims
The Tribunal at [10] noted that the applicant’s protection claims had “developed” over time.
The Tribunal summarised the applicant’s claims as follows:
(a)In her protection visa application, the applicant’s claims were based on workplace grievances and a lack of career progression within the Fijian public service. The Tribunal noted that the harm the applicant feared if she returned to Fiji based on this claim was not entirely clear as she had resigned from the Fijian public service.
(b)During her interview with the delegate, the applicant had indicated that she would be harmed if she returned to Fiji because she had joined an organisation in Australia called the Fiji Democratic Movement (FDM).
(c)During the review with the Tribunal, the applicant claimed to fear arrest, detention and death as an ex-civil servant with anti-government opinions, her membership of the Fiji Native Government in Exile (FNGE), and her support for breakaway states and secessionist movements.
Country Information
The Tribunal at [11] of its Decision provided a summary of information from the Department of Foreign Affairs and Trade Report (DFAT Report).
Consideration of Issues
The Tribunal outlined that the issues for consideration included the applicant’s credibility, whether she engaged in certain activities in Australia for the purpose of strengthening her claim for protection, whether she was a refugee as defined in s 5H(1) of the Act, and whether there was a real chance of harm (TD [56]).
Credibility
The Tribunal noted that the applicant presented new claims after lodging her application, and at the hearing the applicant had to be prompted to recount claims she had previously made. The Tribunal considered her evidence to be ‘cautious’ and unforthcoming’, and that she presented as ‘intentionally vague’. The Tribunal found that her evidence shifted and changed and was inconsistent with her written submissions (TD [57]).
The Tribunal referred to the applicant’s evidence about fearing harm for supporting the Christian states of Nadroga-Navosa and Ra, being a member of FNGE, working with Ms Kirwin and working for the government. The Tribunal found that the applicant was tailoring her testimony to suit her claims rather than testifying based on her actual experiences when she was giving evidence about her claim that she would face punishment in Fiji for her opinions and support of the FNGE (TD [58-62]).
The Tribunal found that the applicant was ‘extremely unforthcoming and intentionally vague’ when she testified about fearing harm in Fiji because she had expressed opposition to the land bank scheme (TD [65]). The Tribunal also noted that her evidence on this issue at the hearing was inconsistent with her Statutory Declaration (TD [66]).
The Tribunal noted inconsistencies between the applicant’s evidence and witness letters. The Tribunal recorded that when this was put to the applicant, she changed her evidence (TD [66]).
The Tribunal did not accept that the applicant had demonstrated an adverse opinion to the land bank scheme in her previous employment or that she had refrained from doing so in fear of losing her job (TD [94]).
The Tribunal accepted that the applicant had collective ownership of some land in her home village (TD [87]). The Tribunal accepted she was employed by the public service until she resigned on 2 November 2013 (TD [88]) and that she made complaints about workplace issues and lack of career progression to various public sector officials, including the Prime Minister (TD [89]).
The Tribunal was not satisfied that the applicant held strong views about land rights and indigenous rights because she had not identified these views as part of her initial claim in her visa application (TD [67-68]).
The Tribunal found that the applicant’s testimony about her involvement with FDM was inconsistent, hard to follow and that she often had to refer to her notes (TD [69]). The Tribunal also noted that the applicant lacked certainty about the FNGE and its ongoing plans. The Tribunal observed inconsistencies in the applicant’s evidence about her involvement with this organisation and recorded that she had produced evidence of an unrelated receipt to support her claim that she had donated to the organisation in 2015 (TD [70-72]). The Tribunal did not accept that the applicant had a leadership role in the FNGE or that she was ever involved with the FDM (TD [103] and [109]).
The Tribunal gave no weight to letters submitted by the applicant from her father, Ms Duikorokoro, Mr Daunitutu and Mr Leawere and did not rely on Ms Kirwin’s testimony at the hearing, noting that the evidence provided by these witness statements raised further inconsistencies and credibility concerns (TD [74] and [76-85]).
The Tribunal gave no weight to the information subject to the s 438 Certificate (TD [55]).
Activities in Australia
The Tribunal was not satisfied that the applicant could provide a sufficient explanation for waiting three months to start expressing her views about land rights, indigenous rights or her anti-government opinions in Australia (TD [117-118]). The Tribunal observed that it had concerns about whether she was a supporter of the independent Christian provinces as she had ceased support from 2016.
The Tribunal found that the applicant had engaged in activities in Australia with Ms Kirwin, PISAI and FNGE for the purpose of strengthening her claim to be a refugee (TD [120]). The Tribunal did not accept that the applicant genuinely supported the establishment of autonomous Christian states in Fiji and found that her activities in Australia had not come to the attention of Fijian authorities (TD [115] and [121]).
Risk of future harm
The Tribunal was not satisfied that the applicant held genuine fears of harm on the basis of her treatment during her employment in Fiji and/or her university results in 2014 (TD [122-123]).
The Tribunal found that there was no evidence before it which demonstrated a real chance that the applicant would be harmed for expressing her opinions about the land bank scheme and indigenous rights in Fiji (TD [124] and [128-129]).
The Tribunal found that the applicant would have no desire to express opinions about indigenous rights, the Fijian government and the establishment of autonomous Christian states in Fiji, having only expressed such opinions in Australia to bolster her protection claim, and therefore there was no risk of future harm on this basis (TD [127] and [131]).
The Tribunal found that there was no evidence before it to suggest that the Fijian government would target the applicant for her involvement with the FNGE, PISAI or her affiliation with Ms Kirwin. It found that the applicant’s activities in Australia presented no risk of future harm to her in Fiji (TD [133-145]).
Conclusion
The Tribunal found that the applicant did not satisfy the refugee criterion under s 5H(1) of the Act and Australia did not owe her protection obligations pursuant to s 36(2)(a) (TD [146-147]), or complementary protection under s 36(2)(aa) (TD [148-150]).
The Tribunal affirmed the decision of the Department (TD [152]).
APPLICATION TO THIS COURT AND HEARING
The applicant applied to this Court for judicial review of the Tribunal Decision pursuant to s 476 of the Act on 27 August 2019. She stated that the grounds for her application were (reproduced without alteration):
1.My rights were I felt not taken into account during the long period of wait process (e.g. emotional).
2.As a taxpayer I also felt the reason was unfair as I still fear returning to my country as an ex-civil servant.
3.Seek judicial review and wish to exercise my right as a temporary resident of Australia.
The applicant filed an affidavit in support of her application for judicial review on 27 August 2019. The affidavit attached the Tribunal Decision.
On 19 September 2019, a registrar of this court made procedural orders to file any additional evidence, including any transcript of the Tribunal hearing, any amended application setting out each ground of review relied upon and complete particulars by 12 December 2019 and a written outline of submissions and list of authorities 14 days before the final hearing.
On 25 March 2025, a registrar of this court made further orders for provision of documents at least 28 days before the final hearing.
On 27 May 2025, orders were made in Chambers that the applicant must file and serve any amended application, additional evidence and written outline of submission by 18 July 2025.
The applicant did not avail herself of the opportunities to amend her application and no further documents were filed.
On 11 August 2025, the applicant appeared before this Court as a litigant in person. A Fijian interpreter assisted the Court. The applicant confirmed that she could understand the interpreter and that she had received copies of the Court Book and the Minister’s written submissions.
The following documents were before this Court – the application for judicial review filed 27 August 2019, the applicant’s affidavit dated 27 August 2019 (read at hearing), a Court Book filed 7 April 2025 (numbering 437 pages and marked as Exhibit 1R) and written submission of the Minister filed 1 August 2025.
A court has a duty to assist unrepresented litigants: Hamod v New South Wales [2011] NSWCA 375 (Hamod) per Beazley JA, Giles JA and Whealy JA. The touchstone remains that of fairness, and a trial judge should take steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the court to ensure a fair trial: Hamod per Beazley JA at [311] – [313].
As the applicant was a litigant in person, I provided an overview of the process of the Court. I explained that jurisdictional error is a kind of serious legal error and outlined some common categories, noting that these categories were not exhaustive. I also outlined the well-established principle outlined by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at [272] – that a court cannot engage in reviewing the merits of the decision. I explained that the hearing was a final hearing of the Court. The applicant said that she understood.
During the hearing I provided the applicant with an opportunity to further particularise each of the grounds of review separately and to make submissions (in accordance with principles in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 per Feutrill J at [22]).
CONSIDERATION OF CLAIMED GROUNDS OF JURISDICTIONAL ERROR
Legal principles – protection visas
The Tribunal was required to consider whether the applicant met the legislative criteria for a Protection (Class XA) (subclass 866) visa.
Section 29(1) of the Act gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. The Migration Regulations 1994 (Cth) (the Regulations) prescribe the criteria for classes of visas: s 31(1) and (3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act.
The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a)(ii) of the Act.
Subsections 36(2)(a) and 36(2)(aa) of the Act provide that a criteria for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the receiving country, there is a real risk that the non-citizen will suffer significant harm.
Section 5H(1)(a) of the Act provides that a person is a refugee if they are unable or unwilling to avail themselves of the protection of a country owing to a well-founded fear of persecution. Section 5J sets out what it means to have a well-founded fear of persecution.
Role of this Court
Section 476 of the Act provides that this Court has the same original jurisdiction as the High Court. The High Court, under s 75(v) of the Constitution, has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
A privative clause as defined at s 474 of the Act is final and not amenable to judicial review. The Court can grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
The role of judicial review was explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and MulticulturalAffairs (2022) 289 FCR 21 (Djokovic) per Allsop J, Besanko and O’Callaghan JJ at [17] as follows:
…an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision, nor does it remake the decision.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 (LPDT), the plurality of the High Court commented on some of the forms of jurisdictional error. The Court stated that jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of authority [2-3] (footnotes omitted):
Because an express or implied condition of a statutory conferral of decision-making can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed.. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The Court must review the lawfulness or legality of the tribunal decision by reference to the applicant’s complaints about the decision: Djokovic at [17]. In cases such as this however, where the applicant is unrepresented, the Court should consider the applicant’s complaints and be astute and alert to legal error: MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 (MZAIB) per Mortimer J at [100].)
Consideration of the grounds of jurisdictional error alleged by the applicant
The applicant has advanced three grounds of jurisdictional error in her application.
Consideration of Ground 1
The applicant contended in her application that the first ground of jurisdictional error was that (reproduced below without alteration):
My rights were I felt not taken into account during the long period of wait process (e.g. emotional).
The applicant was asked at the hearing before me to provide further particulars of this claim (Tp 10.15-16). She said that she felt the long wait for the Tribunal process caused her significant stress at a time when she was going through a divorce and experiencing financial stress. She said that she was trying to balance work and study, and she missed most of the important dates for her family. She said that she has been in Australia for more than ten years and her children have grown up without her and they have gone through ‘a lot’. She said that she could have returned to Fiji but could not, as she was an ex-civil servant (Tp 10.26-32). She said that she does not know why the Department refused her application for a protection visa (Tp 10.41-42).
I explained to the applicant that while it is desirable for a court or tribunal to make speedy decisions, in order to succeed in her application before me, she would need to demonstrate jurisdictional error by showing that the Tribunal Decision was impacted by the delay (Tp 10.45-11.9). She responded that her statement and evidence were submitted to the Tribunal, but still the Tribunal ‘did not approve her status’ (Tp 11.11-13). She said that she does not know if the Tribunal ‘checked with someone back in Fiji’ about her evidence to see if her statement was valid (Tp 11.13-14).
The applicant’s submissions primarily relate to the emotional impact of the long delay, at a time when she was experiencing stress from a divorce and financial stress. It is understandable that the delay between the Tribunal hearing and decision may have caused the applicant emotional stress. There is no reason provided for the delay between the Tribunal hearing (6 April 2018) and the Tribunal Decision (31 July 2019), and there may have been extenuating circumstances, but in general such a delay is not satisfactory.
The question for this Court is whether the 15-month delay impacted on the decision-making process. As found in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 (Expectation Pty Ltd), reasoning should be treated with ‘some reserve’ where there is a delay: at [71-72].
The Minister has submitted that the applicant has failed to identify procedural fairness that could reasonably be attributed to the passage of time. The Minister submitted that there were mitigating factors as the Tribunal Member was proactive and listened to the recording of the hearing to refresh her memory of the Tribunal hearing.
Summary of authorities - delay
There are unusual circumstances where delay may vitiate a decision where the delay has caused a diminution in the capacity of a decision-maker to evaluate the evidence.
In the High Court case of NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 (NAIS), the court considered a delay between the tribunal hearing and tribunal decision of four and a half years. The High Court held that the circumstances in which delay of itself will vitiate a tribunal decision are rare and depend on the circumstances of the case ([5] per Gleeson CJ). The court (Gleeson CJ, Kirby, Callinan and Heydon JJ, Gummow and Hayne JJ dissenting), found that the tribunal decision in that matter was affected by jurisdictional error, in light of the ‘extraordinary delay’: [2].
His Honour Chief Justice Gleeson found that there were a number of examples of adverse findings of credibility in the Tribunal decision which turned on an assessment that ‘must have been influenced by demeanour’. An example provided was a finding that an appellant showed no signs of trauma or concern: [8]. Gleeson CJ at [10] explained:
What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal's capacity to make a proper assessment of their sincerity and reliability. The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.
Kirby J held that whether or not delay will amount to an inordinate delay will depend upon the nature and complexity of the case, the facts and issues, the purpose and nature of the proceedings, and whether the applicant has contributed to the delay, in addition to any other relevant circumstances. Kirby J said at [85]:
The significance of delay, depending as it does on the issues for decision, necessitates examination of the matter actually decided. If this involved no more than the construction of a written document, the interpretation of a statutory provision applied to agreed facts or other like questions, undue delay, whilst regrettable, might not affect the acceptability or validity of what has been done. The court conducting the appeal or judicial review could judge that matter for itself. Where, however, the matter for decision involves an assessment of the truthfulness of a party or important witnesses, the resolution of competing versions of the facts and the differentiation of truth and falsehood, delay, especially protracted delay, in the provision of a reasoned decision may cast doubt on the validity of that decision. Commonly, this is explained by reference to the need to ensure that “the trier of fact can recall the testimony and the demeanor of the witnesses as well as the dynamics of the trial. (Citations omitted).
In MZYNN v Minister for Immigration & Anor [2012] FMCA 96, the Federal Magistrate’s Court had issued writs of certiorari and mandamus holding that the tribunal had fallen into jurisdictional error because of the delay of one year and three months in publishing its decision. It was held that the delay may have impaired the tribunal’s assessment of credibility. On appeal to the Federal Court of Australia, Justice Gray held that the federal magistrate had ‘misapplied the principles relating to delay in decision-making’: Minister for Immigration and Citizenship v MZYNN [2012] FCA 117 (MZYNN) at [37]). The Federal Court allowed the appeal by the Minister and set aside the orders of the court at first instance. Gray J held that the delay did not impair the capacity of the tribunal to assess the credibility of the applicant, or in some other way render the decision unsafe: at [34-37]. In MZYNN, the tribunal member had made its decision on credibility on the basis of absence of corroborating evidence, and it was found that the absence of this corroborating evidence had nothing to do with delay.
In MZYNN at [32], Gray J cited AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (AON). Heydon J in AON observed that in that case 10 months was an excessive period to reserve an interlocutory judgment on issues relating to the preparation of a case for trial. He went on to link the delay with deficiencies in the judgment, including failure to refer to affidavit evidence and a number of other factors (at [153]). Gray J in MZYNN observed that Heydon J was the only judge to deal with the delay issue and opined that the deficiencies noted had ‘more to do with his Honour’s view that the interlocutory judgment should be overturned than did the mere fact of delay’ (at [ 32]).
In Expectation Pty Ltd, Carr, Emmett and Gyles JJ considered a claim regarding an ‘inordinate delay’ of one and a half years between the final addresses and the publication of reasons. The court referred to the advantage a trial judge has in seeing oral and documentary evidence unfold and noted that ‘the mere fact of a long delay itself weakens a trial judge’s advantage’, at [70]. The court said at [74]:
The problem is not restricted to fading memory. A judge who comes to make an inordinately delayed decision will inevitably be subjected to great pressure to complete and publish the judgment. A conscientious judge could not but feel that pressure…That pressure could well unconsciously affect the process of decision-making…
In BPY20 v Minister for Immigration & Multicultural Affairs [2025] FedCFamC2G 487 (BPY20) at [83], Her Honour Judge Coulthard noted that in Nais, there were a number of examples of findings by the tribunal that turned on an assessment of credibility that must have been influenced by the tribunal’s observations of the appellant’s demeanour, and where evidence that was not inherently improbable, or contradicted by objective facts, was rejected as ‘implausible’. Her Honour found in BPY20 that there was no jurisdictional error in the tribunal decision in that case, where there was a delay of 19 months. Her Honour noted the comments of the courts in Nais that the circumstances in which delay would vitiate a decision are rare and depend on context: [80] – [84]. At [85] she said:
…the Court considers it remains necessary to address the central issue which is whether the passage of time means that there was a “real and substantial risk” that the Tribunal’s ability to assess or make findings of fact on the basis of the applicant’s evidence was compromised. Delay might compromise a decision maker’s ability to accurately recall the evidence an applicant gave; lead to the decision maker ignoring or overlooking evidence the applicant gave; or compromise the decision maker’s ability to accurately make findings based upon the applicant’s demeanour when giving evidence. Demeanour based findings are, generally speaking, more likely to be affected by the passage of time as they are findings which might not be assisted by notes or a transcript because they are based upon impressions the fact finder formed at the time the evidence was given.
In ARB23 v Minister for Immigration & Multicultural Affairs [2025] FedCFamC2G 218 (ARB23) there had been a delay between filing of the application to the tribunal, and the matter being heard by the Tribunal of five years. The applicant contended that the delay was similar to that in Nais and the same reasoning should apply to support a conclusion that the tribunal decision was unsafe ([18]). The Minister contended that there is no specific timeframe within which the Tribunal must finalise a review. It argued that for a delay to ground jurisdictional error it must be linked to a consequence, such as was the case in Nais where there was a delay of five years between two hearings before the Tribunal and then the Tribunal made adverse credit findings based on demeanour of the applicant between hearings ([24]). Her Honour Judge Taglieri accepted the Minister’s submissions that the applicants had failed to demonstrate how the delay either between filing and the hearing or the hearing and the decision had denied them procedural fairness or caused the process or outcome of the decision to be unreasonable, illogical or unsafe ([42]).
In Saha v Minister for Immigration & Multicultural Affairs [2025] FedCFamC2G 1034 (Saha) the applicant contended a denial of procedural fairness by the Tribunal because there was a lengthy delay between the application for review and the hearing ([21]). Judge McCabe considered that the Tribunal had provided the applicant with the opportunity to provide updated material closer to the hearing ([22]). He also noted that it was not a case where there had been an unusual delay between the hearing and the decision date, so could not be argued that the tribunal member’s recollection of the applicant’s submissions at the hearing was degraded by tardiness. The Court did not identify any denial of procedural fairness in relation to the delay ([23]).
Consideration - delay
In the matter before me, the Minister submitted that the delay of 15 months was not significant, the applicant had not identified the material unfairness or a flaw in the process, and the Tribunal took steps in mitigation.
The relevant principles distilled from the authorities are set out below. I have applied the principles to the facts in this matter:
(1)The mere fact of a long delay weakens a decision-maker’s advantage in seeing and hearing oral and documentary evidence unfold in a coherent manner: Expectation Pty Ltd at [69-70].
A primary decision-maker is in a strong position to evaluate evidence effectively as they have seen and heard the evidence. This benefit may be lost if there is a lengthy delay, as in this case. However as referred to later I am satisfied that in part at least, the advantage was regained through revisiting the evidence.
(2)There must be a real and substantial risk that the tribunal’s capacity for competent evaluation was diminished: NAIS at [10].
In NAIS, the delay was four and a half years, whereas the delay in this case was 15 months. This is still a long period and potentially there could be a real and substantial risk of diminution in capacity to evaluate, although for reasons set out below, I am satisfied that the capacity to reason was not substantially diminished.
(3)Delay may be more relevant where there are questions of credibility, and in particular demeanour: Nais at [85]; BPY20 at [83], rather than situations where there is corroborating evidence: MZYNN at [32].
In the case before me there were questions of credibility, but the credibility concerns did not arise from demeanour. They arose for a number of reasons, including presentation of vague and ambiguous evidence, inconsistencies between oral and written evidence, presentation of new claims to the Tribunal, inability to recall original claims and lack of reliability of witnesses and documents. `.
(4)Delay between a hearing and decision may be more of a concern than delay between filing and a decision: ARB23 at [42]; Saha at [23].
In this case there was a substantial delay between the hearing and the decision.
(5)Finding jurisdictional error based on lengthy delay is rare: Nais [5], as it is necessary to identify a flaw in the process of the Tribunal’s reasoning: NAIS at [10]; AON per Heydon J at [53]; ARB23 at [42].
A lengthy delay does not always constitute error on the part of the decision-maker (see MZYNN at [32]). In CCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 167 (CCF18) even though there was a delay of a similar period to the one in the case before me (19 months), Judge Ladhams found at [43] that there was no jurisdictional error.
In the matter before me, the applicant was unable to identify any flaws in the decision-making process of the Tribunal, although she was asked about this at the hearing before me. I have examined the Court Book and Tribunal Decision to ascertain if there were deficiencies in the reasoning caused by delay, but I have been unable to locate any.
(6)Mitigating circumstances should be considered: Saha at [22]. I accept that the Tribunal took steps to mitigate the consequences of the delay: CCF18 at [41] per Judge Ladhams.
In the matter before me, shortly before making the decision the Tribunal Member listened to the Tribunal recording of the hearing and reviewed all the evidence again (see TD [9]). This is important. Even though the delay may have impacted on her memory, the evidence would have been fresh in her mind when she was considering the evidence and making findings.
In Expectation Pty Ltd, at [73], the court said that notwithstanding significant delay, where a trial judge demonstrates by his or her reasons that full consideration has been given to all of the evidence, the parties and the public may be satisfied that the delay has not affected the decision. In this case, it appears that full consideration was given to the evidence. The Tribunal produced a detailed and thorough decision (CB 400-434). The Tribunal referred to the applicant’s evidence in the protection visa application (TD [12-21]); documentary evidence (TD [22-24] and [35-40]), the interview with the delegate (TD [25-34]), the evidence at the Tribunal hearing (TD [41-44]) and post-hearing submissions (TD [45-50]).
The Tribunal then considered the applicant’s credibility (TD [57-78]) and the reliability of Ms Kirwin’s testimony (TD [79-85]).
The Tribunal went on to make findings on claims relating to land ownership (TD [87]), public service employment (TD [88-89]), the land bank scheme, conflict of interest and work related claims (TD [90-95]), the immigration watch list (TD [96-101]), FDM (TD [102-105]), other activities in Australia (TD [106-112], coming to the attention of Fijian authorities (TD [113-115]) and engaging in political activities in Australia (TD [116-121]). Based on these findings, the Tribunal then made findings in relation to future harm (TD [122-145]).
The negative credibility findings were based on multiple factors:
(a)In the protection visa application, the applicant’s claims were based on workplace grievances and a lack of career progression within the Fijian public service. During her interview with the delegate, the applicant had indicated that she would be harmed if she returned to Fiji because she had joined FDM. During the review with the Tribunal, the applicant claimed to fear harm as an ex-civil servant with anti-government opinions, her membership of FNGE, and her support for breakaway states and secessionist movements. The Tribunal noted that the applicant presented new claims after lodging her application, and at the hearing the applicant had to be prompted to recount claims she had previously made (TD [57]).
(b)The Tribunal considered her evidence to be ‘cautious’ and unforthcoming’, and that she presented as ‘intentionally vague’. The Tribunal noted that her evidence shifted and changed and was inconsistent with her written submissions (TD [57]).
(c)The Tribunal referred to the applicant’s evidence about fearing harm for supporting the Christian states of Nadroga-Navosa and Ra, being a member of FNGE, working with Ms Kirwin and working for the government. The Tribunal found that the applicant was tailoring her testimony to suit her claims rather than testifying based on her actual experiences (TD [58-62]).
(d)The Tribunal found that the applicant was ‘extremely unforthcoming’ and ‘intentionally vague’ when she testified about fearing harm in Fiji because she had expressed opposition to the land bank scheme (TD [65]). The Tribunal also noted that her evidence on this issue at the hearing was inconsistent with her Statutory Declaration (TD [66]).
(e)The Tribunal noted inconsistencies between her evidence and witness letters. The Tribunal recorded that when this was put to the applicant, she changed her evidence (TD [66]).
(f)The Tribunal did not accept that the applicant had demonstrated an adverse opinion to the land bank scheme in her previous employment or that she had refrained from doing so in fear of losing her job (TD [94]).
(g)The Tribunal accepted that the applicant had collective ownership of some land in her home village (TD [87]). The Tribunal accepted she was employed by the public service until she resigned on 2 November 2013 (TD [88]) and that she made complaints about workplace issues and lack of career progression to various public sector officials, including the Prime Minister (TD [89]).
(h)The Tribunal was not satisfied that the applicant held strong views about land rights and indigenous rights because she had not identified these views as part of her initial claim in her visa application (TD [67-68]).
(i)The Tribunal found that the applicant’s testimony about her involvement with FDM was inconsistent, hard to follow and that she often had to refer to her notes (TD [69]). The Tribunal did not accept that the applicant had a leadership role in the FNGE or that she was ever involved with the FDM (TD [103] and [109]).
(j)The Tribunal gave no weight to letters submitted by the applicant from witnesses and did not rely on Ms Kirwin’s testimony, noting that the evidence provided by these witness statements raised further inconsistencies and credibility concerns (TD [74] and [76-85]).
(k)The Tribunal was not satisfied that the applicant could provide a sufficient explanation for waiting three months to start expressing her views in Australia (TD [117-118]).
(l)The Tribunal found that the applicant had engaged in activities in Australia for the purpose of strengthening her claim to be a refugee (TD [120]).
The findings on credibility were not based on demeanour but rather on multiple factors as set out above, and the Tribunal demonstrated that full consideration has been given to all of the evidence. Given that the Tribunal listened to the recording and revisited all the evidence prior to writing the decision, I am satisfied that there was no adverse impact on the reasoning process caused by the passage of time.
There was no jurisdictional error disclosed in Ground 1.
Consideration of Ground 2 and Ground 3
The second ‘ground’ in the application was:
As a taxpayer I also felt the reason was unfair as I still fear returning to my country as an ex-civil servant.
The third ‘ground’ in the application was:
Seek judicial review and wish to exercise my right as a temporary resident of Australia.
These ‘grounds’ appear to be assertions of the applicant’s rights and statements which take issue with the findings of the Tribunal without identifying the jurisdictional error claimed.
The Minister submitted that Grounds 2 and 3 were not proper grounds of review.
At the hearing the applicant was invited to further particularise these grounds (Tp 13.1-3). It was explained to her that disagreeing with the outcome of the decision does not amount to error, and it was necessary to locate jurisdictional error in the Tribunal Decision. The applicant was asked if she could point to some specific errors in the Tribunal Decision, and if she was claiming, for example that there was an error in the findings about ex civil servants (Tp 13.24-30 and 13.35-40).
She said that regarding Ground 2, she felt that as a taxpayer, the decision was unfair as she was an ex civil servant.
In these grounds the applicant is asserting her rights as a taxpayer and temporary resident. While she has expressed her disagreement with the outcome of the Tribunal Decision, she has not identified any particular jurisdictional error.
These grounds are liable to be dismissed for want of particularisation: see NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]:
Due to the vagueness of the application for review and the applicant’s failure to file submissions, the Court is unable to ascertain what error was alleged to have been made by the AAT. The applicant was unable to articulate this ground any further during the course of the hearing. The failure to particularise a ground of review is itself a sufficient basis to dismiss it: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 [21].
To the extent that the applicant is claiming that this Court should make a different finding to that made by the Tribunal, it is settled law that the Court cannot review the merits of a tribunal decision. In Wu Shan Liang the High Court said at [272] (footnotes omitted):
When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review…The Court continued:
"The reasons for the decision under review are not to be construed
minutely and finely with an eye keenly attuned to the perception of error".31. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.
…For example, it was said by Brennan J in Attorney General (NSW) v Quinn:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
Disagreement with the merits of a decision, if any, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu(1999) 197 CLR 611; at [40].
There is no jurisdictional error disclosed in Grounds 2 or 3.
Other grounds
The Minister in written submissions raised the issue of the s 438 certificate which had been provided to the Tribunal by the Department. The Minister conceded that there had been a breach of common law procedural fairness as the Tribunal had not disclosed the existence of the certificate to the applicant. The Minister submitted that this breach was not material as there could not realistically have been a different decision if the breach had not occurred: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA). The Minister submitted that the Tribunal had disclosed the information contained in the certificate and invited the applicant to comment or respond, ‘thereby discharging its statutory procedural fairness obligations’.
The letter provided to the Department was under a Certificate from the Department pursuant to s 438(1)(b) of the Act which restricts disclosure of information received by the Department in confidence. If the Tribunal was given a document or information and was notified that s 438 of the Act applied in relation to it, s 438(3) conferred on the Tribunal a discretion to have regard to any matter contained in the document or the information and, if the Tribunal thought it appropriate to do so having regard to any evidence given by the Secretary under s 438(2), a discretion to disclose any matter contained in the document, or the information, to the applicant.
Section 422B(1) of the Act at the relevant time provided that Div 4 of Pt 7 ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’. Section 422B(2) provided that ss 416, 437 and 438 and Div 7A, in so far as they relate to Div 4 of Pt 7, ‘are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with’. Section 422B(3) provided that, in applying Div 4 of Pt 7, the Tribunal must act in a way that is fair and just.
In SZMTA at [45] it was held that a breach of the obligation of procedural fairness to disclose the fact of notification of a certificate to the applicant, or a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, can give rise to jurisdictional error if, and only if, the breach is material in the sense that compliance could realistically have resulted in a different decision.
The applicant said at the hearing that she had been forwarded a copy of a ‘dob-in letter’ from the Tribunal (referring to the s 438 Certificate). She said that she was given 10 to 14 days to comment, but the Department had had the letter since 2015 or 2016, which she was surprised about (Tp 11.38-46). She said that the dob-in letter came in just when the decision was supposed to be handed down. She said that it also prolonged the matter as she should have been informed about the dob-in letter earlier (Tp 12.8-11). She said that she believed that the Tribunal was influenced by the dob-in letter (Tp 14.5-6 and 14.13-17).
The Minister contended at the hearing that the Tribunal complied with s 424A of the Act in relation to the dob-in letter, by writing to the applicant with an invitation to comment or respond (CB 378) (Tp 16.32-37). The Minister submitted that the Tribunal gave the certificate no weight (TD [51] and [55]) (Tp 16.22-27) and that the Tribunal found the Certificate to be invalid as it was not signed.
The Tribunal was required by s 424A of the Act to put to the applicant for comment or response information which, subject to her comments or response, would be the reason or part of the reason for affirming the decision under review. As claimed by the Minister, on 31 May 2019 the Tribunal wrote to the applicant (CB 378) and identified information as an email sent to the Department of Home Affairs by a ‘person who identified themselves as a close friend of yours’. This person said that:
She is lying about her claim for protection visa in Australia. Recently on her wall on Facebook she uploaded a photo receiving her renewed Fiji passport via the mail which was renewed by her husband currently in Fiji. The easy renewal of her Fiji passport clearly indicates that she is neither on the watchlist nor any interest to the current Fiji government. If she was a target by the current government I am sure they would have withheld her passport and carried out further investigation.
The Tribunal noted that the source of the information had named the applicant and provided her birth date. The Tribunal noted that the information was relevant because it indicated that she had a current passport when she had produced an expired passport to the Tribunal, which appeared consistent with information she had provided about possible travel to Bali and undermined her claim of being on a Fiji watchlist. The applicant was invited to comment or respond.
On 12 June 2019 the applicant responded to the invitation to comment or respond (CB 383-384). She claimed that she had presented her new passport to the Tribunal and had applied for the passport to visit Bali. She said that she had not provided any misleading information to the Tribunal.
At [51] to [55] of the Tribunal Decision, the Tribunal considered the dob-in letter. The Tribunal noted that there was nothing on the face of the dob-in letter to indicate that it was provided to the Department in confidence. It was also unsigned. For these reasons the Tribunal found that the Certificate was invalid, and the information contained therein was not restricted. The Tribunal noted that it had provided the information in the dob-in letter to the applicant and had considered the response received from her. The Tribunal concluded that it gave the information in the dob-in letter no weight.
I am satisfied that the Tribunal complied with the obligation in s 424A of the Act by inviting the applicant to comment and respond to the information in its entirety and explaining the relevance of the information. The fact of the notification was not provided, but as in SZMTA, compliance could not realistically have resulted in a different decision.
I am also satisfied that the dob-in letter did not influence the findings. The Tribunal Member clearly stated that she considered the applicant’s response and gave the dob-in letter no weight (TD [55]). The Tribunal has set out many other reasons for its findings.
The applicant contended at hearing that the dob-in letter was from 2015 or 2016 but was only provided to her close to the time of the Tribunal Decision, and it had prolonged the matter, and she was surprised it was provided so late. There is no evidence before me that the existence of the dob-in letter prolonged the matter. I note that in the s 424A letter sent to the applicant on 31 May 2019 it was said ‘it recently came to the attention of the Tribunal Member conducting your review that in March 2016, the Tribunal received information from the Department of Home Affairs which the Member considers relevant to your review’ (CB 378). For whatever reason, it appears that the Tribunal Member only became aware of the issue in 2019. In my view, there was no procedural unfairness in providing the information to the applicant at this stage, as she was given a fair opportunity to comment or respond to it, as was required by the legislation.
No jurisdictional error arises in relation to the s 438 Certificate.
CONCLUSION
There is no jurisdictional error disclosed in the Tribunal Decision.
The application for review filed on 27 August 2019 is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard. Associate:
Dated: 9 October 2025
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