BWS22 v Minister for Immigration and Citizenship [2026] FedCFamC2G 452

1. This is an application for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) within which to commence an application for judicial review.
2. The applicant seeks judicial review of a decision of the former Administrative Appeals Tribunal (Tribunal) made 13 May 2022. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to cancel the applicant's Subclass 202 (Global Special Humanitarian) visa under s 116 of the Act.
3. If an extension of time is granted, then the applicant also seeks a declaration for discovery under r 16.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules) and then orders for particular discovery under r 16.07(1) of the Rules.
4. At the hearing of the application for an extension of time held on 18 December 2025 in Melbourne, the parties agreed that the Court should first determine the application for an extension of time, and then the application for discovery.[1]

1. The applicant made a previous application for judicial review of the same decision of the Tribunal. That application was dismissed by Her Honour Deputy Chief Judge Mercuri on 21 July 2023 (BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 635 (BWS22 (No 1))).
2. An appeal to the Federal Court of Australia was also dismissed (BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 387 (BWS22 (No 2)) per Button J). An application for special leave to appeal to the High Court of Australia was refused (BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCASL 234). The applicant now seeks to commence a new (or second) application for judicial review because new information has recently been revealed to his legal advisors by the Tribunal following a Freedom of Information request and further correspondence.
3. For the sake of convenience, the following background facts (excluding footnotes) are taken from the decision of DCJ Mercuri in BWS22 (No 1) at [2]-[12] and are not in dispute:

BACKGROUND

[2] The applicant initially arrived in Australia on 16 March 2009 with a tourist visa with his two half-brothers. Upon arrival at Melbourne Airport, the applicant was assessed by immigration staff as not being a genuine visitor. His tourist visa was subsequently cancelled and he was placed in immigration detention.

Application for protection visa on 18 March 2009

[3] On 18 March 2009, the applicant applied for a Protection (Subclass 866) visa ('protection visa') while in immigration detention.

[4] On 1 May 2009, his application for a protection visa was rejected.

Grant of GSH visa on 11 October 2010

[5] Ultimately, on 11 October 2010, the applicant was granted a GSH visa following Ministerial intervention. The visa permitted the holder to reside in Australia permanently.

Application for Australian Citizenship on 3 November 2014

[6] On 3 November 2014, the applicant applied for Australian citizenship by conferral.

[7] On 21 June 2017, the applicant was interviewed in relation to his citizenship application.

Cancellation of GSH visa on 18 April 2019

[8] On 28 February 2019, the Department of Home Affairs ('the Department') sent the applicant a Notice of Intention to Consider Cancellation ('NOICC') of his visa and invited the applicant to respond within a specified period.

[9] On 18 April 2019, a delegate of the Minister considered the relevant information, including the applicant's response to the NOICC, and decided that a ground for cancellation under subsection 116(1AA) of the Migration Act 1958 (Cth) ('the Act') existed and that the visa should be cancelled.

Application for review at Tribunal on 25 April 2019

[10] On 25 April 2019, the applicant applied to the Tribunal for a review of the delegate's cancellation decision.

[11] The applicant was invited to, and did attend a hearing before the Tribunal, which occurred on 13 April 2022. The applicant also provided supporting material to the Tribunal, including an updated statement, a psychological report and a report on the applicant's identity.

[12] On 13 May 2022, the Tribunal ultimately affirmed the delegate's decision.

1. The Tribunal found that there were inconsistencies in the applicant's evidence which meant that the Tribunal could not accept the applicant's current claim to his true identity (BWS22 (No 1) at [23]). Therefore, the decision to cancel the applicant's visa was affirmed. In the application for judicial review, the applicant relied on five grounds of review. All five grounds were rejected and the original application for judicial review was dismissed.

1. On 10 October 2025, the applicant filed a new originating application with the Court seeking judicial review of the Tribunal's decision made 13 May 2022. The new originating application was filed outside the statutory time limit within which to bring an application for judicial review fixed by s 477(1) of the Act. Therefore, the applicant is, if the originating application is to be entertained by this Court, required to obtain an extension of time under s 477(2) of the Act.
2. That of course, is assuming that the originating application is not beyond the jurisdiction of the Court for some other reason or otherwise an abuse of the Court's process.
3. In the Response filed 12 November 2025 (Response), the Minister opposes the orders sought by the applicant on the grounds that the originating application was not filed within the time required by s 477(1) of the Act and because:

3.1 The applicant is estopped from bringing the current proceedings on the basis of res judicata and issue estoppel.

3.2 The doctrine of Anshun estoppel applies and there are no special circumstances to justify its non-application.

1. At the hearing of the application for an extension of time, Senior Counsel for the Minister submitted that it was unnecessary for this Court to consider if the originating application should be dismissed because of the grounds identified in paragraphs 3.1 and 3.2 of the Response and that the application for an extension of time was opposed by the Minister 'on a broad discretionary basis'. Counsel cited the decision in AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1105 per Mortimer J (as her Honour then was) (AIO21 (No 1)). I have considered that decision, in particular paragraphs [26], [29]-[33] and [38]-[42] and the decision of the Full Court of the Federal Court in AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114 at [57]- [66] and [71] (AIO21 (No 2)). Here, the proposed new grounds of review are different and 'distinct' to the previous grounds advanced by the applicant and they could not have been advanced on the evidence then available. Therefore, the course of action proposed by Senior Counsel for the Minister and Senior Counsel for the applicant is that the application for an extension of time be determined first. That is the appropriate course based on those authorities. The principles of res judicata and Anshun estoppel do not prohibit the Court from entertaining the application for an extension of time. Further, the Court is not prevented from applying broad discretionary grounds when considering whether the interests of the administration of justice are served by allowing the applicant to commence a second application for judicial review.
2. The Minister does not otherwise object to the competency of the Court to entertain the application for an extension of time (paragraph 8 of the Response and r 25.05(1)(h) of the Rules) and does not submit that the application is an abuse of process. Therefore, when considering this application, the Court will consider the application on the basis of conventional grounds for an extension of time under s 477(2) of the Act.
3. In the originating application, the applicant identified the following grounds for seeking an extension of time under s 477(2) of the Act:

1. The delay is because the applicant did not ascertain sufficient material facts upon which this application is based until 18 September 2025.

2. The Minister suffers no prejudice compared to the prejudice that the applicant would suffer if the extension is refused.

3. The proposed substantive ground has sufficient merit on an impressionistic basis.

4. It is otherwise in the interests of justice for time to be extended.

1. In the originating application, the following substantive grounds of review were identified by the applicant as material jurisdictional errors by the Tribunal:
   1. The Tribunal member impermissibly de facto delegated the making of the decision to Tribunal staff.

Particulars

(i) Insofar as the applicant can say prior to discovery, Tribunal staff had substantive input into the decision of the Tribunal member, including in the form of "comments and opinion from Legal Officers", as described in the varied reasons for the Tribunal's decision dated 24 June 2025 in respect of FOI request 2025/0193 made by the applicant. That input is further described by the Tribunal in a submission from it to the Information Commissioner dated 18 September 2025 as "encompass[ing] preliminary analysis, internal discussion and the weighing of competing options" said to be "essential" to the decision.

(ii) The legal consequence of the staff input was that the Tribunal member had impermissibly de facto delegated the making of the decision to the staff.

(iii) Further particulars may be provided after discovery.

1. The Tribunal denied the applicant procedural fairness in making its decision based on information provided by the Tribunal's "Legal Officers" without first inviting the applicant to comment, contrary to ss 359AA and/or 359A of the Act.

Particulars

The information is described in the particulars to ground 1. Further particulars may be provided after discovery.

1. It is upon these proposed grounds that the Court is required to consider whether it is necessary in the interests of the administration of justice to extend time under s 477(2) of the Act.
2. A notice of a Constitutional matter under s 78B of the Judiciary Act 1903 (Cth) has been given by the applicant to the Attorneys-General of the Commonwealth and of each State and Territory of Australia notifying that there is a matter arising in this proceeding involving the interpretation of the Commonwealth of Australia Constitution Act (Cth) (Constitution). That matter is to what extent, if any, the immunity of a member of the Administrative Appeals Tribunal under s 60 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) is compatible with the entrenched minimum provisions of judicial review in s 75(v) of the Constitution. There was no response to that notice, and no recipient has applied to be joined to this proceeding.

1. In support of the application for an extension of time and discovery, the applicant relies on an affidavit of Timothy Gerard Madigan affirmed 10 October 2025 (Exhibit 'A1').
2. Mr Madigan is a solicitor employed by the Refugee and Immigration Legal Service in Brisbane. In his affidavit, Mr Madigan explains that on 20 April 2023, he made a request under the Freedom of Information Act 1982 (Cth) (FOI Act) to the Tribunal following consideration of a report of the Honourable Ian Callinan AC KC entitled 'Review: Section 4 of the Tribunals Amalgamation Act 2015 (Cth)' (Callinan Report) (A1 annexure TGM2). In particular, paragraph 10.23 of that report where Mr Callinan AC KC said:

10.23 The MRD Legal Services complement consists of approximately 28 legal officers and others. The Legal and Policy Section consists of 10 legal and "policy officers". In general, "policy", (as opposed to its implementation) unless advice on it is sought, is not a matter for public servants. I am unpersuaded that there is a need for a "policy" section in the Registry. I was informed by the Registrar that MRD Legal Services comprises legally qualified staff who provide a range of services, "products", and resources to assist AAT staff and Members. The Registrar described the work done by this section in five dot points in a briefing to the President. In my opinion, the role of this section is questionable. In fairness to those who have shaped it, the lack of legal qualifications of a number of Members of the AAT provides some justification for its existence. The third dot point in the briefing reveals that the section gives advice on substantive issues, at the request of Members, and sometimes reviews draft decisions or draft correspondence for legal issues. Members should not need to seek, or seek, advice, legal or otherwise, from public servants, and public servants should not offer to or provide it. Material provided by the Registrar also showed that draft decisions are, upon request by a Member, reviewed for "legal issues" by the SSCSD Member Support Unit. Equally, in the case of the General and Other Divisions, Member support teams, among other things, "edit draft decisions and reasons for decisions". All of these practices should cease. They have a real capacity to affect the independence of the AAT and to fall short of reasonable community expectations. Decision-making in these ways is not transparent.

1. Mr Madigan first requested production of the policy manual prepared by the MRD (Migration and Refugee Division) Legal Services in relation to 'checking' the decisions of the Tribunal. On 27 August 2024, he made a further request for the case numbers of each review application where the MRD Legal Services team had been requested to undertake a draft decision check from 2016 until August 2024. The result of his request was that in October 2024, a list of 12,299 case numbers were produced by the Tribunal. This list was produced after the outcome of the applicant's application for special leave to appeal to the High Court on 5 September 2024.
2. Included on the list of cases produced was the applicant's application for review of the delegate's decision. In March 2025, Mr Madigan made a further request under the FOI Act for production of all emails passing between the presiding member of the Tribunal and the MRD Legal Services regarding the applicant's application for review.
3. On 11 April 2025, the Tribunal provided partial access to documents within the scope of Mr Madigan's request. More than 800 pages of documents were produced. Many were redacted under exemptions claimed by the Tribunal under the FOI Act. On 2 May 2025, the applicant then commenced an application in this Court for preliminary discovery of the documents produced for the purpose of considering whether to commence a further application for judicial review. On 6 May 2025, Mr Madigan also applied for review by the Office of the Australian Information Commissioner (OAIC) of the Tribunal's response to the request for production of the emails under the FOI Act.
4. On 24 June 2025, the Tribunal produced further documents in response to Mr Madigan's request. As a result of that decision, three bundles of documents were identified by the Tribunal, including draft decisions which were described as follows:

Draft decisions

The documents marked 3C, 3D, 3E, 3F and 3G are exempt under section 47C of the FOI Act. These are draft versions of Tribunal decisions, some of which contain comments and opinion from Legal Officers. They were prepared for the sole purpose of review, refinement and legal quality assurance prior to the finalisation of a decision. Draft decisions are inherently deliberative in nature. They do not reflect the Presiding Member's settled position and often contain preliminary reasoning, unresolved issues or alternate approaches that may ultimately be omitted or revised. Comments from Legal Officers within these drafts also represent internal legal advice prepared to inform the decision-maker and are not for public dissemination.

The disclosure of these drafts would be contrary to the public interest. It would expose internal thought processes and legal strategy, potentially undermining the integrity of the decision- making process. It would also risk inhibiting the candour with which members and Legal Officers engage in reviewing and refining draft decisions, out of concern the preliminary assessment could later be published. Having regard to the factors in paragraphs 6.22-6.29 of the FOI Guidelines, I consider that any public interest in transparency have been satisfied by the release of the final and signed decision. disclosure of internal drafts and legal commentary would not further that interest in a meaningful way and would detract from the proper functioning of the deliberative process. It follows that the decision to find the draft decisions exempt under section 47C has not been varied.

1. On 18 September 2025, the Tribunal made a written submission to the OAIC (A1 annexure TGM7). In that submission, the Tribunal explained the exemptions claimed under the FOI Act and that reliance was placed on s 47C of the FOI Act for documents characterised as 'deliberative matter'. The Tribunal submitted in relation to the three bundles of documents produced on 24 June 2025 that (A1 annexure TGM 8 at 272-3):

The exemption extends not only to final views expressed, such as a decision draft or formal advice, but also to material produced for the purpose of sharing ideas and potential approaches and the working documents developed as part of that process. The Tribunal's deliberative processes necessarily include:

• The seeking and provision of legal advice to members

• Preliminary analysis and weighing of competing options

• Internal discussion of litigation risks and possible outcomes

• The drafting and revision of materials to support the exercise of statutory functions

The documents found to be exempt under section 47C, contained within document bundles 1, 2 and 3, fall squarely within this characterisation. Document bundle 1 is an extract from the Tribunal's Legal Management System which contains a description of legal advice sought and a summary of the advice provided. Document bundle 1 is an electronic record managed by the Legal team produced so that the section can keep track of advices and opinions provided by its lawyers to inhouse members. This record exists only as a record of an opinion or advice provided to the Presiding Member. It is by nature and definition deliberative matter.

Document bundle 3 comprised unfinalised drafts prepared in the course of the Tribunal's deliberative processes. These documents relate directly to the Presiding Member's making of a decision. They are unfinished records and are not in their final form.

Document bundle 2 is a combined bundle of email correspondence which contains the following material which has been categorized as deliberative within the definition in section 47C:

Email of 16 December 2021 (page 2) and Email of 3 February 2022 (page 25, duplicated at pages 42 and 95)

This is email correspondence of senior Legal Officers considering and evaluating advice from the Department of Home Affairs (the Department) with regard to that particular court matter.

Email of 3 February 2022 from the department (pages 25-27, duplicated at pages 43- 45 and 97-99)

This is emails from the Department providing a summary of a potential approach to litigation related matters.

Email of 7 February 2022 (page 50, duplicated at page 60)

This is advice from the then Director of the Legal Services section providing advice and recommendation to the Tribunal Registry about how to progress the administration of the matter.

Email of 14 February 2022 (pages 84-85)

This is the Presiding Member's request for advice and the Legal Services Director's advice to the member.

These documents were not created as final or administrative records. Rather, they were developed for the specific purpose of supporting internal decision-making and include evaluating competing considerations, interpreting legislative or policy frameworks, weighing up facts and circumstance and forming preliminary views or advising on matters which relate to the functioning of the Tribunal. Whilst not all of the email content relates directly to the making of a Tribunal decision, it is long established that section 47C extends to deliberation regarding administrative or policy decisions and opinion, recommendation or advice relating to broader functions of an agency.

The material in question embodies the requisite features of deliberative matter. It is tentative and unfinalised, a reflection on relevant factors and an internal exchange of opinion and evaluation between the Presiding Member, Division Head and Legal Officers including the Director of Legal Services. These communications were prepared solely for internal use and not intended for external dissemination or consultation.

With regard to document bundles 1, 2 and 3 the material is unquestionably deliberative. As noted by Deputy President Forgie in Wood, the terms 'opinion', 'advice' and 'recommendation' under section 47C are broad and include not only the expression of a position but also the process of forming that view1. This encompasses preliminary analysis, internal discussion and the weighing of competing options. The exempt email content in document bundle 2 is reflective of this and these types of emails are essential elements in the Tribunal's decision- making function. In this context, disclosing the draft documents and related deliberative emails would undermine the integrity of the Tribunal's internal deliberations and inhibit frankness in future internal communications.

Applying the characterisation of the section 47C exemption noted in the FOI Guidelines [at 6.46] we maintain that:

1. The documents at issue are deliberative because they comprise advice, opinions and drafts

2. The email content, draft documents and electronic record of opinion was obtained, prepared or recorded in the course of, or for the purposes of, the deliberative process of the Tribunal exercising its statutory objective to undertake merits review.

3. This deliberative function of the Tribunal is central to the review function exercised by the Tribunal

It follows that the revised FOI decision correctly found that parts of the document sets are deliberative and conditionally exempt under section 47C of the FOI Act. The content forms part of the internal evaluative processes undertaken by the Tribunal in the course of performing its statutory functions and does not reflect final or administrative outcomes. The exempt information within document bundles 1, 2 and 3 was correctly described as deliberative matter.

1. As a result of that submission, the applicant discontinued the application for preliminary discovery on 1 October 2025 and on 10 October 2025, lodged the proposed application for judicial review and the application for an extension of time now before this Court.

1. The principles to be applied by the Court when considering the discretion to extend time under s 477(2) of the Act were not in dispute.
2. The factors which the Court should consider in determining whether to grant an extension of time include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the application for review and any prejudice that may be suffered by the parties, noting that the absence of prejudice is not sufficient basis alone to grant an extension (see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344 (Hunter Valley); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388; Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (Tu'uta Katoa); GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [23]).
3. In Tu'uta Katoa, Kiefel CJ, Gageler, Keane and Gleeson JJ said at [10]-[12] (when considering s 477A(2) of the Act, which is in substantially the same terms as s 477(2) of the Act):

[10] The word "may" in the chapeau to s 477A(2) confers an authority to exercise the jurisdiction conferred under s 476A(1)(b) or s 476A(1)(c) of the Act and is not merely facultative in nature. The power is discretionary in the sense that it involves an evaluative judgment as to a state of satisfaction.

[11] At a high level of generality, it may be accepted that the purpose of a power to extend time is "to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". However, what amounts to injustice in this context is not obvious. The text of s 477A reveals a legislative intention to restrict the Federal Court's exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b).

[12] On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s477A(2)(a) and the courts satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject matter, scope and purpose" of the Act. The focus of s477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low; the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

1. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [44], Wigney J said:

[44] Section 477(2) does not define or confine the matters that the Federal Circuit Court can or should have regard to in considering the interests of the administration of justice. In Hickey v Australian Telecommunications Commission (1983) 72 FLR 291 at 297, Lockhart J said the following in relation to power to extend the time in which an application may be made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act):

"... the court should not surround the exercise of its discretion with unnecessary constraints such as a requirement that there be special circumstances or considerations of that kind. The statute does not require them. Nor should the courts. It is best left to the good sense of the judge hearing each case to determine whether, on the evidence before him, the court's discretion should be exercised in favour of granting an enlargement of time to bring an application for an order for review."

1. Section 176 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides as follows:

176 Interrogatories and discovery

(1) Interrogatories and discovery are allowed in relation to family law and child support proceedings in the Federal Circuit and Family Court of Australia (Division 2).

(2) However, interrogatories and discovery are not allowed in relation to any other proceedings in the Federal Circuit and Family Court of Australia (Division 2), unless the Court or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.

(3) In deciding whether to make a declaration under subsection (2), the Federal Circuit and Family Court of Australia (Division 2) or a Judge must have regard to:

(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and

(b) such other matters (if any) as the Court or the Judge considers relevant.

16.01 Declaration to allow discovery

The Court may make a declaration under subsection 176(2) of the Act to allow discovery.

1. Further rr 16.06 and 16.07 of the Rules provide:

16.06 Application for discovery

(1) A party may apply to the Court for an order that another party to the proceeding give discovery.

(2) The application must state the proposed scope of the discovery.

(3) An application may not be made until 14 days after the date by which all respondents must have filed a response.

Note 1: A response must be filed within 28 days after service of the originating application to which it relates (see subrule 8.15(7)).

Note 2: The Court may dispense with compliance with the Rules (see rule 1.10).

Note 3: For the rules in relation to preliminary discovery, see paragraph 7.01(2)(c) and the Federal Court Rules.

(4) The Court may order that discovery be given electronically.

(5) If a party who must give discovery wants an order for the cost of discovery, the party must file an affidavit, stating:

(a) the orders sought; and

(b) the party's calculation of the cost of making discovery; and

(c) why the orders should be made.

16.07 Order for discovery

(1) The Court may make an order for discovery:

(a) generally; or

(b) in relation to particular classes of documents; or

(c) in relation to particular issues; or

(d) by a specified date.

(2) If the Court orders a party to give discovery, the party must give discovery of documents:

(a) that are directly relevant to the issues raised by the pleadings or in the affidavits; and

(b) of which, after a reasonable search, the party is aware; and

(c) that are, or have been, in the party's control.

(3) In this rule, a reference to an affidavit is a reference to:

(a) an affidavit accompanying an originating application; and

(b) an affidavit in response to the affidavit accompanying the originating application.

Note: For control, see rule 1.20.

1. In Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 (Devine) at [54], Justice Lander described the circumstances in which a Federal Magistrate may make a declaration for discovery under s 45(2) of the former Federal Magistrates Act 1999 (Cth). His Honour said:

[54] Section 45(2) identifies the circumstances in which it would be "appropriate", in "the interests of the administration of justice", to make an order for discovery, by requiring the Federal Magistrate to have regard to whether an order for discovery "would be likely to contribute to the fair and expeditious conduct of the proceedings" and any other relevant matter. An application for discovery in the Federal Magistrates Court should be approached on the basis that the application should be refused unless the making of an order requiring a party to give discovery would be likely to contribute to the fair and expeditious conduct of the proceeding or there is some other relevant matter that would mean that an order would be in the interests of the administration of justice. The expression, "the administration of justice", must be understood by reference to the scheme of the Act and the presumption that discovery is not usually necessary for the fair and expeditious disposal of the proceeding.

1. Recently in Spears v South Australian Wine Group Pty Ltd (No 3) [2025] FedCFamC2G 1965 at [80]- [82], Judge Lucev considered s 176 of the FCFCOA Act and r 16.01 of the Rules and restated the following principles:

[80] In Gallagher v BHP Billiton Nickel West Pty Ltd [2016] FCCA 3367 ("Gallagher") at [31]- [32] per Judge Lucev the then Federal Circuit Court of Australia set out the considerations in relation to an application for discovery, observing as follows:

[31] Relevant considerations to be taken into account in determining whether to make a declaration under s 45 of the FCCA Act that it is in the interests of the administration of justice to order discovery were summarised in Abrahams v Qantas Airways Ltd (No 2) [2007] FMCA 639; (2007) 210 FLR 314 at [25]- [26] per Lucev FM (by reference to what was then the Federal Magistrates Act 1999 (Cth)) as follows:

"25. In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and such other matters as the Court considers relevant. Those other matters might include:

(a) the relevance of any documents sought to be discovered;

(b) the volume of documents sought to be discovered;

(c) whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;

(d) whether discovery would narrow the issues;

(e) whether both parties seek discovery;

(f) whether there is consent to discovery;

(g) whether discovery is 'of benefit' in the litigation; and

(h) the effect of discovery on litigants, especially, vulnerable litigants.

26. The categories of relevant factors for the purposes of s 45(2)(b) of the FM Act are obviously not closed."

[32] ...In Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 ("Hartnett Legal Services") the Federal Court dealt with the issues of relevance and disclosure generally for the purposes of s 45 of the FCCA Act and r 14.02(2) of the FCC Rules, and observed at [33]-[35] per Rangiah J that:

"33 Fourthly, it would be quite inconsistent with s 45 of the FCC Act to construe 'disclosure generally' as importing a wide test of relevance. The Peruvian Guano test was formulated on the basis of a desire to 'make the rule as large as we can with due regard to propriety': Peruvian Guano at 63. In contrast, s 45 operates to cut down the circumstances in which discovery may be ordered. It would be inconsistent with s 45 to interpret 'discovery generally' as referring to the traditional test for discovery when, as Lucev FM observed in Abrahams, traditional discovery is generally prohibited in the Federal Circuit Court.

34 In summary, an order for 'disclosure generally' under r 14.02(2)(a) of the FCC Rules is:

(a) limited to disclosure of documents that are, or have been, in the disclosing party's possession, custody or control; and

(b) limited to documents that are directly relevant to the issues raised by the pleadings or in the affidavits.'

35 That is not to say that it is beyond the power of the Court to make a more expansive order where it is in the interests of the administration of justice to do so, but no such order was made in this case."

[81] In Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091 ("Vinden") at [10]-[13] per Judge Kendall the then Federal Circuit Court of Australia observed as follows:

10. Overall, there is a reluctance in this Court to grant orders for discovery and interrogatories. Indeed, in Vanden Driesden v Edith Cowan University [2012] FMCA 735; (2012) 226 IR 452, the Court referred to the power as one that is "rarely used".

11. Section 45(1) of the FCCA Act is a general statutory prohibition on discovery.

12. Before granting a declaration under s.45 of the FCCA Act, the Court will specifically consider s.45(2). That section provides:

(2) In deciding whether to make a declaration under subsection (1), the Federal Circuit Court of Australia or a Judge must have regard to:

(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and

(b) such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.

13. In this Court, there appears to be a presumption that the "fair and expeditious conduct of the proceeding" does not require discovery: Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [54]. That does not mean, however, that it will not ever be given.

[82] Discovery nevertheless remains very much the exception and not the rule in the practice and procedure of this Court, and traditional discovery is generally prohibited: Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 at [33] per Rangiah J; Gallagher at [32] per Judge Lucev; Vinden at [13] per Judge Kendall.[2]

1. In the originating application, the applicant identified the following categories of document for which an order or declaration for discovery from the Tribunal was sought. They were:
   1. all emails (including attachments) in the inbox of the presiding AAT member for case number 2201592 containing the search term "2201592" or "[NAME REDACTED]".
   2. all emails (including attachments) in the sent box of the presiding AAT member for case number 2201592 containing the search term "2201592" or "[NAME REDACTED]".
   3. all correspondence between the presiding member and the MRD legal relevant to case number 2201592.[3]
2. The affidavit of Mr Madigan affirmed 10 October 2025 did not seek to address the various considerations that may inform the making of an order for discovery, however the applicant's outline of written submissions dated 20 November 2025 did address each of the matters identified by Judge Lucev in Abrahams v Qantas Airways Ltd (No 2) [2007] FMCA 639; 210 FLR 314 at [25].

APPLICANT'S SUBMISSIONS - EXTENSION OF TIME AND DISCOVERY

1. The applicant filed an outline of written submissions in support of the application for an extension of time and for discovery on 20 November 2025.
2. It was submitted that the delay in bringing the application for an extension of time can be explained by the protracted disclosure of documents by the Tribunal in response to the requests made under the FOI Act and the application for review by the OAIC. It was submitted that it was not until the submission of the Tribunal to the OAIC on 18 September 2025 that the applicant could confidently commence a further proceeding for judicial review with 'reasonable prospects of success'. The documents identified by the Tribunal were not produced by the Tribunal in the previous proceedings and if they were, then 'the applicant would not require an extension of time'.
3. The applicant submitted that he had not been dilatory in bringing the application for an extension of time and that the delay in bringing the application was explained by the recent disclosures made by the Tribunal. There was no prejudice to the Minister, whereas the prejudice to the applicant in depriving him of a further opportunity to review the Tribunal's decision was substantial.
4. Senior Counsel for the applicant, Ms Foley, submitted that the grounds of review in the application for judicial review were not 'speculative' and had merit. The participation of the MRD Legal Services department appears to have gone to matters of substance in the decision-making function of the presiding member. It was submitted that there is evidence that it was not just the presiding member making the decision, but others and that was a matter of 'real concern'. Further, the applicant had been denied procedural fairness by not having the opportunity to consider and comment on information provided to the presiding member that formed part of the decision-making process. These grounds were reinforced by paragraph 10.23 of the Callinan Report where it was observed that decision-making by the Tribunal lacked transparency. Reliance was also placed on the observations of Dr Susan Kenny (later Kenny J) when she was President of the Administrative Review Council in 1995, where Her Honour expressed concerns regarding decision-making by persons other than the responsible member or members.[4]
5. In the applicant's outline of written submissions, it was submitted that the merit of the grounds of review would be 'further illuminated by discovery' (paragraph [26]) but Senior Counsel submitted in oral submissions that regardless of an order for discovery, the applicant 'still has a case available to him on the basis of the material already disclosed'. Discovery, it was submitted, was highly relevant to the application for judicial review, but the dismissal of the application for discovery would not bring the application for judicial review to a 'screaming halt'. Senior Counsel correctly noted that '...It (a refusal to order discovery) will certainly make it harder, but we still have an application to make'.
6. In relation to discovery, a declaration pursuant to s 176 of the FCFCOA Act was sought because it was submitted to be necessary and in the interests of the administration of justice that the applicant obtain unredacted access to the documents produced by the Tribunal, pursuant to previous FOI Act requests, to assist him in facilitating the fair and expeditious conduct of the proceeding (Devine at [54] per Lander J).
7. It was submitted that the three categories of documents sought in the originating application were:
   • Relevant to the identified grounds of review;
   • Identifiable by reference to the previous FOI Act requests and not voluminous;
   • Not previously provided in any Court Book;
   • Likely to materially alter the applicant's prospects of success, and assist the applicant to evaluate the further prosecution of his grounds of review;
   • Not immune from production by operation of s 60 of the AAT Act; and
   • Of benefit to the expeditious resolution of the proceeding because they go directly to the substance of the substantive grounds of review.
8. In the applicant's outline of written submissions, the applicant relied on the entrenched minimum provisions of judicial review established by s 75(v) of the Constitution. Reliance was placed on the explanation of that section in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476; at [103]-[104]. Reliance was also placed on Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 (Graham) at [32]-[34], [42]-[43], [48], [50] and [52] to support the submission that s 60 of the AAT Act should not be interpreted to deprive this Court of the authority to undertake judicial review of administrative action. The Court should not be deprived of the opportunity to consider relevant and available evidence that may be determinative of the application for judicial review. Further, such evidence should not be withheld from a court exercising power under s 75(v) of the Constitution.
9. In oral submissions, Ms Foley submitted that this Court should, in the interests of the administration of justice, order that the Tribunal discover the documents sought and do so squarely on the basis of the authority in Graham.

MINISTER'S SUBMISSION - EXTENSION OF TIME AND DISCOVERY

1. The Minister filed an outline of written submissions in opposition to the application for an extension of time and for discovery on 4 December 2025.
2. It was submitted that an extension of time should not be granted because:
   • The delay is extreme;
   • The applicant's explanation for his delay is not satisfactory;
   • The applicant has already sought judicial review of the Tribunal's decision;
   • There are strong public interest considerations in favour of the finality of decisions; and
   • The proposed grounds of review are speculative at best.
3. Further, if the Court was to refuse discovery, then there is an even stronger reason to refuse to grant the applicant an extension of time because the prospects of the applicant obtaining the relief sought in the originating application are not only speculative but 'hopeless'.
4. On the issue of delay, Mr Wood, Senior Counsel for the Minister, submitted that the explanation for delay since March 2025 was 'sparse at best'. There was no evidence regarding delay from the applicant himself. Further, there was no evidence of why a decision was not made to commence a proceeding for judicial review immediately after the production of documents by the Tribunal on 24 June 2025. It was submitted that the documents produced by the Tribunal on 24 June 2025 were clearly documents relating to the deliberations of the presiding member and contained legal advice obtained from MRD Legal Services. None of the documents suggested a delegation of the decision-making function, nor could that be inferred. The further description of the documents and their relevance on 18 September 2025 did not add weight to or support the grounds of review now raised. Nothing in the referred to documents reflect a delegation of the decision-making function of the presiding member and therefore, the submissions of 18 September 2025 do not provide a credible explanation for delay. Nothing 'meaningful' was to be learned or gained from the 18 September 2025 submission.
5. In relation to ground two of the proposed grounds of review, there was nothing in the mere giving of legal advice or correspondence between the Tribunal member and MRD Legal Services to suggest that there was information of an evidentiary nature that was required to be disclosed to the applicant under s 359A of the Act. Nor could it be inferred that it was information that would be the reason or part of the reason for affirming the decision under review. Therefore, this ground lacked merit and the application for an extension of time should be refused.
6. Reliance was placed on the decisions of Justice Gaudron of the High Court in Herijanto v Refugee Review Tribunal [2000] HCA 16; 74 ALJR 698 (Herijanto (No 1)) at [11]-[16] and Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21; 74 ALJR 703 (Herijanto (No 2)) at [9]-[11]. Her Honour held that discovery and interrogatories were not permissible to compel disclosure of 'the decision-making processes of individual members of the Tribunal' because of the immunity provided to members of the then Refugee Review Tribunal by s 60 of the AAT Act and s 425 of the Act (now repealed). It was submitted on behalf of the Minister that s 60 of the AAT Act provides immunity to members of the Tribunal from disclosure of any aspect of the decision-making process.
7. Further, the Minister submitted that s 60 of the AAT Act is constitutionally valid and the question of the constitutional validity of that section was unnecessary for this Court to consider, when discovery could still be refused on discretionary grounds. This Court need only decide no more than is necessary to resolve the controversy between the parties (citing Vunilagi v The Queen (2023) 279 CLR 259 at [55]; see also Mineralogy Pty Ltd v Western Australia [2021] HCA 30; 274 CLR 219 at [56]- [60]). Section 60 of the AAT Act does not impermissibly oust the jurisdiction of the Court under s 75(v) of the Constitution because the jurisdiction to conduct judicial review of administrative decisions remains intact. The effect of s 60 is to limit the evidence that may be available to be considered and does not seek to shield decisions from review by the Court. The decisions of the Tribunal are open to review under s 75(v) of the Constitution and s 476 of the Act, but the deliberations of a presiding member during the decision-making process are not because they are immune.
8. It was submitted that the decision in Graham relied on by the applicant does not support the applicant's claim that s 60 of the AAT Act is invalid because the statutory provision considered in Graham was of a 'radically different kind' to s 60 of the AAT Act. In Graham, the Court was considering s 503A(2) of the Act which prohibits disclosure of certain information considered by the Minister when exercising the power to cancel a visa under s 501 of the Act. The majority of the Court held that s 503A(2) imposed a 'blanket and inflexible limit on obtaining and receiving evidence relevant to the curial discernment of whether or not legislatively imposed conditions of and constraints on the lawful exercise of powers conferred by the Act on the Minister have been observed' (Graham at [50]). This was impermissible because s 503A(2) of the Act amounted to a 'substantial curtailment of the capacity of a court exercising jurisdiction under or derived from s 75(v) of the Constitution' (Graham at [64]). The effect of s 503A(2) of the Act was 'effectively to deny the court evidence, in the case of the applicant the whole of the evidence, upon which the Minister's decision was based. It strikes at the very heart of the review for which s 75(v) provides' (Graham at [65]). It was submitted that in substance and degree, s 60 of the AAT Act did not impose the same restriction. Disclosure of the evidence upon which a decision of the Tribunal was based was not prohibited, rather s 60 of the AAT Act prohibits disclosure by compulsion of evidence and documents that reveal the decision-making process or deliberations by the presiding member. A legislative restriction of that kind is permissible and not invalid (Kizon v Palmer [1997] FCA 21; (1997) 72 FCR 409 at 446 per Lindgren J; A v Independent Commission Against Corruption [2014] NSWCA 414; (2014) 88 NSWLR 240 at 253-4 per Basten JA).
9. Section 60 of the AAT Act and other like statutory provisions support an important public policy, which is to protect the independence of statutory tribunals (in this case, decision makers appointed to conduct independent review of administrative decisions) and the finality of judgments and determinations (Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645 at [45]- [46] per French CJ, Crennan, Kiefel and Bell JJ).
10. It was submitted that the power of this Court to grant discovery is not entrenched in, or necessary to support, the jurisdiction of the Court under s 75(v) of the Constitution, nor is it necessary for the Court to order discovery (Babet v Commonwealth [2025] HCA 21; (2025) 99 ALJR 883 at [122]- [123]). Section 60 of the AAT Act does not intrude impermissibly on the Court's jurisdiction under s 476(1) of the Act to conduct judicial review of Tribunal decisions. The effect of s 60 of the AAT Act is to limit the evidence available when conducting judicial review for well-established policy reasons.
11. It was submitted that as a matter of discretion, an extension of time should not be granted and discovery would then become unnecessary. Alternatively, if an extension of time was granted, then discovery should not be granted.

1. In reply, Ms Foley addressed four points arising from the Minister's submissions. First, that no criticism should be made of the applicant because his solicitor sought to provide an explanation for the delay in bringing this application. The circumstances leading to this application were the result of the investigations by Mr Madigan and not the applicant, and therefore Mr Madigan was the relevant person to explain what occurred and when and why forensic decisions were ordered.
2. Second, that the letter of 18 September 2025 from the Tribunal to the OAIC (AI, annexure TGM 8 at p 269- 76) provided significantly more information about the role of the MRD Legal Services team and their contribution to the decision-making process. In particular, reliance was placed on the last paragraph of exhibit AI Annexure TGM8 at 272 and the first paragraph at 273, which provided new insight into the information previously provided. It was submitted that the detail and character of the dialog between the presiding member and MRD Legal Services was different in character to previous descriptions and revelations by the Tribunal.
3. Third, the Court should not assess the merits of the grounds of review in tandem with the discovery application. The task of the Court is to assess the merits on an impressionistic basis, and then consider if discovery should be ordered. The Court should not engage in a de facto ruling on the discovery application when considering the merits of the new grounds. That would be contrary to principle.
4. Fourth, the decision in Graham should be construed as prohibiting a blanket immunity from the Court receiving relevant evidence when conducting the review of administrative decision-making. Section 60 of the AAT Act provides such a blanket and inflexible immunity from the admission of relevant evidence and was constitutionally invalid and impermissible to the extent that it purports to immunise the Tribunal from discovery.

1. The applicant and the Minister have addressed the conventional considerations of delay, prejudice and merits when exercising the Court's discretion under s 477(2) of the Act (Tu'uta Katoa at [14] and [17]). However, this application also has the additional overlay or complication of the immunity from production or disclosure by the Tribunal of evidence of the presiding member's decision-making process and the important public policy consideration of the finality of litigation, especially in relation to the review of administrative decision makers. These are matters that weigh on the assessment of the merits of the substantive application, but more broadly when considering the interests of the administration of justice under s 477(2) of the Act. I accept that as a matter of general principle the two applications (i.e. extension of time and discovery) should be viewed separately. However, in this application they intersect when considering whether to exercise the discretion to extend time because it is necessary in the interests of the administration of justice to do so (Tu'uta Katoa at [19]).

1. The decision of the Tribunal that is sought to be reviewed was made on 13 May 2022. There was then an application for review heard by this Court, constituted by Deputy Chief Judge Mercuri, which was dismissed on 21 July 2023. An appeal to the Federal Court of Australia was dismissed on 18 April 2024 and special leave to appeal to the High Court was refused on 5 September 2024. The delay in bringing this application can be viewed in three ways, either from the date of the decision of the Tribunal (i.e. the date of the migration decision as per s 477(1) of the Act), the date on which the High Court refused special leave to appeal or the date on which the new grounds of review were first realised to be available to the applicant. The applicant contends the last date and the Minister submits the first and or second.
2. On behalf of the Minister, it was submitted that there was no adequate explanation for the delay by the applicant, personally. Rather, it was from his solicitor. This is not a matter that should be viewed adversely when considering whether to exercise the discretion to extend time. In the circumstances of this case, the explanation given for not making an application for an extension of time before 10 October 2025 is explained by the attempts made by Mr Madigan to obtain further information from the Tribunal regarding the decision-making process in this instance. The delay arising from that process of investigation has been explained on behalf of the applicant by Mr Madigan and it was not the case that the applicant or those advising him were dilatory or deliberate in failing to commence the second application in a timely manner. This is not a case where the statutory time limit was ignored or overlooked by the applicant but one where those advising the applicant did not consider it appropriate to seek an extension of time or to commence a second application for judicial review until evidence was obtained that they considered gave sufficient weight to the applicant's claim to warrant an application to the Court. That was the professionally responsible thing to do and is consistent with the overarching purpose of the 2025 Rules (r 1.05) and s 190 of the FCFCOA Act. The explanation given for the delay between dismissal of the application for special leave and commencement of this proceeding is credible and excusable.
3. Criticism was also levelled at the delay between receipt by the applicant's solicitor of the letter from the Tribunal dated 24 June 2025 and the letter to the OAIC on 18 September 2025 because it was said the information provided on 18 September 2025 was of no greater weight to the information provided in the earlier correspondence. That criticism is also unwarranted. The letter of 18 September 2025 did provide further insight into the role of the MRD Legal Services in assisting the presiding member and the letter explained that the role of the MRD Legal Services was for:

...the specific purpose of supporting internal decision-making and include evaluating competing considerations, interpreting legislative policy frameworks, weighing up facts and circumstances and forming preliminary view or advising on matters which relate to the function of the Tribunal

1. This raised an understandable concern about the 'checking process' undertaken by the MRD Legal Services team, that the presiding member 'alone' may not have made the decision the subject of review (Luck v Secretary, Department of Human Services [2017] FCA 540 at [68]- [69] per Kerr J (Luck)). There is no reason not to accept that it was not until Mr Madigan considered the letter of 18 September 2025 that the applicant elected to proceed to seek an extension of time. In the interim, the applicant applied for preliminary discovery of the documents described in the letter dated 24 June 2025, and the hearing of that application was pending at the time of receipt of the submission to the OAIC dated 18 September 2025. I do not consider that the delay between the refusal of special leave to appeal on 5 September 2024 or receipt of the letter from the Tribunal dated 24 June 2025 and the date of lodging the application for an extension of time and further review on 10 October 2025 is inordinate, unsatisfactory or inexcusable in the circumstances of this case.
2. However, I do consider that it is highly relevant when considering whether to exercise the discretion and when considering the interest of the administration of justice to give weight to the fact that the decision of the Tribunal was made on 13 May 2022 and that there has been an unsuccessful application for judicial review to this Court, an appeal to the Federal Court of Australia and an unsuccessful application for special leave to appeal to the High Court before seeking to bring a second application for judicial review. That the applicant has exhausted the review processes available to him and now seeks to avail himself of that process again means that there should be close scrutiny of the prejudice caused and the merits, before allowing the applicant to pass through the judicial review process for a second time (AIO21 (No 2) at [71]).

1. As cited above, the absence of actual prejudice to the Minister is not by itself a reason to grant an extension of time (Hunter Valley at 349, lines 16 to 21). The Minister does not identify any actual prejudice that may be suffered by re-litigating the applicant's claims for review (such as loss or destruction of evidence, or the requirement to call witnesses who may no longer be available). However, the Minister does submit that there is a clear public interest in the finality of public law litigation and in particular, migration matters (Tu'uta Katoa at [34]; Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at [15] per McHugh J (Marks); see also Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 at [62] per Gyles J).
2. The applicant submits that the prejudice he will suffer if an extension of time is not granted is substantial because he will likely be removed from Australia and returned to a place where he fears serious harm and irremediable consequences. That is a legitimate and relevant consideration when weighing whether to exercise the discretion to extend time (AIO21 (No 1) at [29] per Mortimer J). However, the decision of the Tribunal (which in turn affirmed the decision of the delegate to cancel the applicant's visa) has been found by this Court to have been a decision made without material jurisdictional error and an appeal from that judgment was dismissed. The consequences of the visa cancellation for the applicant were matters for consideration by the delegate and the Tribunal when exercising their discretion under s 116 of the Act and were matters for the repository of that power, and for the repository alone (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6). In the absence of administrative injustice or error, the decision of the decision-maker should be upheld and final.
3. The applicant has had the benefit of the full ambit of merits and judicial review available to him following the delegate's decision to cancel his visa. In Marks, McHugh J said that it was necessary to consider the history of the matter when considering whether to extend time. This includes the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension (Marks at [15]). The public interest in the finality of public interest litigation is weighty, as is the need to discourage litigants from collateral or satellite litigation that seeks to revisit the decision-making process on different grounds when conventional review processes have been unsuccessful. The prejudice to the timely and efficient resolution of disputes by allowing an unsuccessful litigant to relitigate judicial review applications is substantial and weighs heavily against exercising the discretion to extend time.

1. After considering the proposed grounds of review, the evidence relied on in the letters from the Tribunal dated 24 June 2025 and 18 September 2025, and the immunity from production of evidence as to the decision-making process of the Tribunal (formerly s 60 of the AAT Act, now s 293 of the Administrative Review Tribunal Act 2024 (Cth)) (ART Act)), I do not consider there to be sufficient merit in the grounds of review in this case to satisfy the requirement that it is necessary in the interests of the administration of justice to extend time.
2. The first ground of review is that the Tribunal member impermissibly delegated the making of the decision to Tribunal staff (namely to the MRD Legal Services team). Reliance is placed on the decision in Luck and other authorities where a decision-maker made a decision in the presence of, or with the assistance of, a stranger or has improperly delegated decision-making to another unauthorised person.[5] In those circumstances, the decision has been held to be an unlawful exercise of power.
3. In this application, the applicant seeks to rely on the letter dated 18 September 2025 from the Tribunal to the OAIC to suggest that the presiding member has delegated responsibility for the conduct of the review to another person or persons. However, the letter does not clearly suggest that this has occurred, or indeed that it was likely to have occurred. The letter describes the documents as part of a process of seeking and obtaining advice in the course of the presiding member's deliberations. The letter also describes the documents in bundle three as relating to the presiding member 'making a decision'. This suggests that that final decision remained that of the presiding member. The applicant seeks to draw inferences from the description of correspondence given to the OAIC in the letter of 18 September 2025, but that description falls short of demonstrating an actual and unlawful delegation of decision-making authority by the presiding member. The taking of advice or the receipt of assistance does not of itself suggest impermissible delegation of the final decision or that the decision was in fact made by someone other than the presiding member. Only the presiding member could confirm the extent to which they relied on advice or drafting suggestions, and the presiding member's deliberations and evidence is immune from production by operation of s 60 of the AAT Act and now s 293 of the ART Act.
4. It was submitted that discovery may assist the applicant to establish an error of this kind but for the reason to be explained, I would not grant an order for discovery because it is not in the interests of the administration of justice to do so, and because the immunity in s 60 of the AAT Act prohibits disclosure of any aspect of a presiding member's decision-making process (Herijanto No 2 at [10]; Applicant M1014 of 2003 v Minister for Immigration and Multicultural And Indigenous Affairs [2006] FCA 1190 at [14]- [15] per Finkelstein J (Applicant M1014)).
5. To the extent that the applicant also relies on the opinions of the former Justice Callinan in the Callinan Report and of Justice Kenny in her report for the Administrative Review Council as a basis to infer error by the Tribunal, neither of those learned authors suggest that the taking of advice or the seeking of assistance is prima facie unlawful or procedurally unfair. The applicant's submission is that because both jurists cast doubt on the practice of seeking review of draft decisions prior to finalisation, there is a presumption of error in doing so. Whilst both Justice Callinan and Justice Kenny expressed concerns about members of the Tribunal seeking legal advice, neither advocated that the deliberations of a presiding member should be the subject of review or that the immunity from disclosure should be removed where there is a suspicion of the presiding member seeking some form of assistance. Neither author is authority for the proposition that a decision-maker will fall into error by seeking assistance from or discussing potential outcomes with others when deliberating a decision. Justice Callinan was critical of the apparent role of the MRD Legal Services team, but that does not mean that the mere involvement of members of that team constitutes a de facto delegation of decision-making power.
6. The applicant's proposed first ground of review must overcome a well-established public policy and principle of law that this Court is bound to follow, namely that the deliberations of members of Tribunal are immune from disclosure. The record or evidence upon which the decision is made is to be available for scrutiny, but the deliberations and decision-making process of the presiding member is not to be the subject of judicial review. It is not necessary and in the interests of the administration of justice to allow that to occur in this case.
7. The second ground of review also lacks merit. The obligation to invite the applicant to comment on information under ss 359A and 359AA of the Act does not extend beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [28]; Minister for Immigration and Border Protection v CED16 [2020] HCA 24; 94 ALJR 706 at [21]) and does not extend to 'the reasoning process' or 'thought processes' of the Tribunal (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [17]- [18]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [9]).
8. Senior counsel for the Minister submitted that opinions expressed by a member of the MRD Legal Services team or others, and comments or opinions on drafts of reasons or any other communication regarding deliberations of the Tribunal is not information of an evidentiary nature relevant to the cancellation of the applicant's visa or the reason, or part of the reason, for affirming the decision under review. I agree. Further, without disclosure of that material, it is pure speculation as to whether the comments and opinions was information falling within s 359A or 359AA of the Act. The particulars to this ground confirm that to be the case. The ground cannot be made out without discovery, which binding authority dictates is not available. That it might be relevant information is not enough to give this ground substance. Without discovery, there can be no foundation for this ground and the description of the documents provided does not suggest that the documents sought are information of an evidentiary nature upon which the opportunity to comment was required.

1. The power to order discovery is to be rarely used in this Court and is the exception rather than the rule (Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 at [33]). It will be ordered if it is in the interests of the administration of justice to do so. The circumstances or relevant factors to be considered by the Court when considering whether to make a declaration are not closed. In this case, the purpose of an order for discovery would be to lift the veil of the immunity to members and officers of the Tribunal provided by s 60 of the AAT Act to disclose the thought processes, deliberations and decision-making of the presiding member. The decisions in Herijanto (No 1) and Herijanto (No 2) prohibit disclosure and discovery of documents of that kind.
2. Because an extension of time is refused, it is strictly unnecessary for the Court to consider whether to make a declaration for discovery, but I would not make a declaration for discovery in this case because of the immunity contained in s 60 of the AAT Act and the decisions in Herijanto (No 1) and Herijanto (No 2), which I consider I am bound to follow (see also Queensland v Mr Stratford [2025] HCA 3; 99 ALJR 396 at [110]; Kline at [45]; Applicant M1014 at [15]). The immunity in s 60 of the AAT Act provides protection to members of the Tribunal from disclosure of the decision-making and deliberation process and serves to protect the independence of members of the Tribunal and the finality of decisions of the Tribunal. It is not in the interests of the administration of justice to allow an unsuccessful litigant to judicial review proceedings to obtain discovery to subvert or compromise that independence and to re-litigate an otherwise unsuccessful application for review. Especially where no challenge was made to the integrity of the decision maker's independence in the first application for judicial review and subsequent appeal to the Federal Court of Australia.
3. The immunity provided by s 60 of the AAT Act is not one which seeks to oust the jurisdiction of this Court or any other Court to exercise the judicial review jurisdiction conferred by s 75(v) of the Constitution. The immunity in s 60 of the AAT Act does not prevent the disclosure of the evidence or the record on which the decision of the Tribunal is made. The principles considered in Graham do not apply to the facts and matters raised in this application.
4. Without discovery, senior counsel for the applicant concedes that the proposed application for judicial review would be difficult to prosecute. For the reasons given, I have taken the view that the proposed or second application for judicial review has no reasonable prospects of success and that it is not necessary and in the interests of the administration of justice to extend time. Therefore, an extension of time and the application for discovery are refused.

1. The application pursuant to s 477(2) of the Act dated 10 October 2025 seeking an extension of time to commence an application for judicial review is dismissed.

1. The Court will hear the parties on the disposition of costs, including the costs of the discontinued application for preliminary discovery.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

[1] There is also an extant issue in relation to the costs of an application for preliminary discovery made by the applicant, which was discontinued by the applicant on 1 October 2025. At the conclusion of the hearing on 18 December 2025, the consideration of that issue was reserved pending the outcome of these applications and further submissions.

[2] See also Furnari v Forms Express Pty ltd [2025] FedCFamC2G 525 at [28]- [31] per Judge O'Sullivan.

[3] The name of the applicant has been redacted from the orders sought to maintain the anonymity of the applicant's identity.

[4] Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals (1995) pp 57-58.

[5] Lane v Norman [1891] 66 LT 83; Gleeson v NSW Harness Racing Authority (1990) 21 ALD 515; Short v Mackay [1951] CthArbRp 710; (1951) 73 CAR 23; MacSween v Fraser (1956) 1 FLR 10; Ethell v Whalan [1971] 1 NSWLR 416 and Politis v Trewin [2011] NTSC 78.