DRQ19 v Minister for Immigration and Citizenship [2026] FedCFamC2G 524

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. These are the reasons for judgment delivered ex tempore on 30 March 2026, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor matters to reflect the intention of the Court as presently constituted.
2. Before this Court is an application for an extension of time. The extension of time is sought, though the applicant may have a decision of the Administrative Appeals Tribunal (Tribunal) judicially reviewed. The Tribunal affirmed a decision of the then Minister for Immigration and Border Protection to refuse the Applicant a Protection (subclass 866) visa (Protection Visa).

1. By way of background, the Applicant is a citizen of India who arrived in Australia on 19 February 2016 as the holder of a visitor visa. On 19 May 2016, the visitor visa ceased, and at that point the Applicant became an unlawful non-citizen.
2. On 27 May 2016, the Applicant applied for the Protection Visa and was granted a bridging visa. Appended to the application was a statement in which the Applicant enumerated the reasons for having sought protection. In summary, the Applicant claimed that he was a practising Sikh, that he was an active member of India's Congress party, he had been tortured, and the police had refused to offer protection. The written statement provided (reproduced with redactions):

... I came to Australia for me bright Future and good life. There's also some other reason that why I came to Australia, why I cannot go Back to India and why I want to apply for protection visa.

I was on born XXX, everything was going good till I am teenager. I belong to a Sikh Community Those who wear turbans, who loves their god and help each and every person. When I was back in India and I was about 18yr and I was fully in to Sikh which means I used wear turban and kept My beards and maintain all Sikhism rules. As we know every teen is active when they in their 18 and19 and they want to go for different opportunities. When I was into my 18 I was active member of Congress Party (It is one of the largest and oldest democratically-operating political parties in the World. The Organisation was founded during the British Colonial times in 1885.) I used to take part in every and each party routine activities, and going to different cities or village to see how people Going and working on their issues, I was a very hard worker and received an award for my hard work. In those days there was only few of Sikh people were member of the Congress Party There was an opposite party of Congress Party which is Called Shiromani Akali Dal (is a Sikhism centric Political party in India, Punjab. The basic meaning of Akali Dal is to give political voice to Sikh Issues and it believes that religion and politics go hand in hand). I and those who were also from Sikh Community were often tortured by Akali Dal members to leave the Congress and join the Akali Dal.Once in 2006 time the election was happening, me and some of our other party member was Helping out people about casting votes to congress party, somehow Akali Dal Party member try to Stopped us, when we didn't they start beating us and took us in the car and throw us on the road, it Was me and one of our another member, at that time, we try to get help from Police but none of the Police member helped us. Few days later they came to my house to ask me what I want to do either Join the Akali Dal or leave the Congress Party. I refused the request and asked them to go out of me House, they attacked on me and my friend. My friend ran away and they left me in very painful Condition. I was hospitalised for several days. They tried and tried but didn't success. After few weeks later they start bringing police to my house to torture me again, I was beaten by them again. My parents decided to hide me for few weeks and I was sent to my relative's house. After several days I found that they are torturing my family and me was hospitalised for month. After few months when I came to see my family

I was attacked in the middle of the road, they attempt to kill me, but somehow somebody took met hospital and contacted my family. And we found that 2 of our Congress Party member who were Also Sikh got killed in an accident, but i knew that they were killed by Akali Dal members. My family was in a big shock and didn't want to lose their son because this time they attempt to kill and they could kill me any time. Due to this again and again happening my parents decided to Send me abroad and move to different city. They were many difficulties we have to go thru, I would lose my life if I was still there, because they are still looking for me. Many of My Friends still call me and always tell me to not to come back to India. Even though my family moved Out to Different city they still torturing them and calling them every day to ask where I am. My Life's last 3year I lived through in pain, hospital, hiding and even though I have to leave my family Forever. It's been 3 years I haven't met and same with my Parents. Since I've went Singapore and I was lived there 3 years but I have not good opportunity that's why I went to back India again but still there is same problem and I have decided to move in Australia and get visa and I come. Australia life was really good, I had every opportunity to live my life my way and Work hard. After all this my parents also not maintain relation with me. My parents said "You are dead for us". I have no relation with my family. I am alone in the world. I don't have anything now.

I am so frustrated and pressurise. I can't even go back, if I did one of They will kill me. I am so depressed that I feel like commit suicide sometimes but then there always Something that stop my family I have think about them as well. I just don't know what to do. I did try to other ways so I don't have to get protection visa but I could so finally I came to know Through my friend about it. which can be great use for us to survive and live peacefully where laws Are being followed by each and every one were everyone is treated equally. I am not safe in life this I Won't be able to survive a peace full life in India...

1. On 2 September 2016, a delegate of the Minister for Immigration and Border Protection (Delegate) refused to grant the Protection Visa application. This power of refusal is conferred on the Minister and their Delegates by section 65 of the Migration Act 1958 (Cth) (Migration Act). The Delegate noted that, "Country information indicates that political activists may be persecuted by their opponents" in India. Despite this, the Delegate characterised the Applicant's claims to be extremely vague and lacking details and accordingly was not convinced of their genuineness.
2. Accordingly, the Delegate was not satisfied that the Applicant was a person in respect of whom Australia owed protection obligations as outlined in the Refugee Criterion and the Complementary Protections Criterion.[1] By operation of the Migration Act, this Court has no power to review the decision of the Delegate.[2]

1. On 19 September 2016, the Applicant applied to the Tribunal for review of the Delegate's decision.
2. On 21 August 2018, the Tribunal notified the Applicant that his file was being prepared for allocation to a Tribunal member. The Applicant was requested to forward any additional evidence to the Tribunal as soon as possible, and to notify the Tribunal whether he, for any reason, was unable to attend a hearing in the following month.
3. On 16 September 2018, the Applicant emailed the Tribunal. The email stated the following:

... For further evidences, i got a chance once to have a chat with my parents. i was so afraid to hear their condition as they still living under the threat of those politicians, they directly warned my parent to kill me if i will try to in India. My parents have advised me to stay out of this mess, they told me they are happy for me to live alive any part of the world rather than getting killed in India by those powerful politicians.

I would like to request you help me to service in the country. I am a hardworking man. I am working in a chicken factory and paying full time tax for the country. I hope you can understand my situation and help me to survive and let me pay my part and service our country (Australia) move towards the steps of success...

It is to be noted that no additional documentary evidence was provided by the Applicant.

1. On 3 April 2019, the Applicant was invited by the Tribunal to attend a hearing scheduled for 1 May 2019. Appended to the invitation was an Information about Hearings - MR Division fact sheet.
2. The hearing proceeded on 1 May 2019, with the Applicant appearing in person. The Applicant had previously informed the Tribunal that he did not require an interpreter, and no interpreter was provided.

1. On 24 August 2019, the Applicant was informed that the Tribunal had affirmed the Delegate's decision to refuse his Protection Visa. The decision record was dated 19 August 2019.
2. The Tribunal's decision is eight pages long and spans 47 paragraphs. The Tribunal began by outlining the matters of procedural history, the criteria for a Protection Visa and the considerations which Ministerial Direction No 56 required the Member to consider. The Tribunal then outlined the Applicant's claims for protection, as enumerated in his Protection Visa application and the email of 16 September 2018. The Tribunal then went on to outline the evidence provided orally at hearing (reproduced with redactions):

16. The applicant expressed a fear that he will die if he returns to India. He outlined that in 2011 or 2012, there was a BJP Government. Some party members came to his home to tell him that he had to change the political party he supported.

17. The applicant alleged that his father was working in security... There was a robbery... while his father wasn't working and someone put his father's name forward in the investigation. The family approached local Member of Parliament...from the BJP... [who] advised the applicant that if he changed parties and paid 5 lack rupees, he would take his father's name out from the case.

18. On election day, the applicant went to vote and saw [the BJP MP]. The applicant told [the BJP member] that if Congress got in, he would put [him] under investigation because he knew who brought the false claims. [The MP] allegedly responded with 'fine, we will see'. Following the incident, the applicant's neighbour told him that he spoke very wrong to the MP.

19. After the BJP won, [the MP] didn't say anything to the applicant, but the applicant described four occasions on which people visited his house to threaten him during 2011 and 2012. The first incident involved three or four people attending his house while he was at work and asking his mother where he was. The applicant does not know who the visitors were.

20. The applicant alleges that his friends and neighbours witnessed the event and told him what they saw when he returned from work...

21. The applicant went on to claim that five or six days later, five guys came to the house in the early morning. Three of the visitors came inside and two remained outside. They punched the applicant three times and left. The applicant's mother was also at home and told him they were not the same people that had visited earlier. Two or three weeks later, the applicant's Dad lost his job.

22. The third incident was when two guys came on a motorbike with a knife and held it up to the applicant and told him to change his party or move state.

23 The final incident was when three people came to the house on one motorbike and attacked the applicant with a carpaan (long knife). The injury to the applicant's leg required stiches. The assailants did not say anything to the applicant, but the applicant said he told them his Dad had already lost his job and apologised. The applicant couldn't remember the month during which any of the incidents occurred.

24. In addition to the visits to the applicant's home, he gave evidence that his sister, mother and four of his friends would receive phone calls during which the caller would make threats to kill the applicant.

25. The applicant alleged that his father was angry with him for saying something to the MP. One day, on his way home from his new job at a restaurant, someone hit his father and fractured his leg. The applicant's mother was sad and six or seven months later his family asked him to leave. The applicant's father spoke to an agent who said he could make some fake education certificates so the applicant could get a visa. The applicant said he was worried, but his father told him lots of people create false documents and it was better than remaining to die.

26. The agent made the false documents and the applicant got an employment pass for Singapore. The applicant worked in a restaurant in Singapore for three years. In 2016, the applicant wished to return to India over the summer holiday. He flew to the South, but his sister told him not to come to Punjab. He stayed in Chennai for two days then travelled to New Delhi by train. Despite his sister's warning, the applicant then travelled to his home town. He gave evidence that his mother brought chapatti and his father questioned why he came.

27. While the applicant was home, he saw some friends for drinks. His friend told him that [the MP] had been calling to his neighbours and asking about him. When the applicant spoke with his mum about this, she asked him to leave. The applicant's father advised that [the MP] knew he was from Singapore now, so told the applicant he should go to Australia. The applicant's parents paid for his ticket and asked him to work and send money for the marriage of sister. Three of his sisters were married and she was the final one.

28. The applicant gave evidence that he came to Australia in 2016. He tried to go back to Singapore or India but his father prohibited it. The applicant sent money home and his family asked him to stay in Australia. He gave evidence that his first work visa was refused, however he was then sponsored to work at [WORKPLACE]...

29. The applicant gave evidence that he saw in the news that [the MP] was killed in a car accident and he thought it was funny. He called his friend [NAME] to say he was happy about the news. However, someone went to his parents' home and told them they would kill the applicant in that way - in a car accident. His mother was mad with him for calling someone about the news.

30. At the hearing, the applicant presented without a turban or beard. Given the evidence regarding the applicant's religion and appearance in his written statement, I asked the applicant if he was no longer an adherent to the Sikh religion. The applicant advised that he comes from a Hindu family, not Sikh. I asked why he would include that information in his statement and in response he explained that at school, they listed his name as [LAST NAME], which is a Sikh name. However, his original name was actually [LAST NAME]. He put Sikh on the application because his name is [NAME], but he is from a Hindu family.

31. I questioned the applicant about whether he attended hospital for treatment of his injuries, and he gave evidence that he never went to hospital.

1. At paragraphs 12 to 17 of the outline of submissions filed on 2 March 2026, the first respondent summarised the Tribunal's assessment of the Applicant's evidence and the reasons for refusal. The Court has carefully read those reasons and accepts the summary as comprehensive, fair and properly referenced. They read, as follows:

12. The Tribunal did not find the applicant to be a credible witness and did not accept that he was ever threatened or harmed by members of the Shiromani Akali Dal, the BJP, people associated with either political party, the police or members of the general community for any reason. The Tribunal did not accept that there were any individuals or groups that would be motivated to locate or harm the applicant if he returned to India. The Tribunal considered the applicant's evidence significantly changed between his written account of events and his oral evidence, and he was unable to give a reasonable explanation for the discrepancies, and there was no corroborating evidence to support either account of events: [33].

13. The Tribunal raised concerns with the applicant about the differences between his written and oral evidence at the hearing, to which the applicant submitted he did not know how much detail to include and only included the critical information. The Tribunal did not find this to be a convincing explanation, and while it accepted that when completing a form a decision might be made as to what information should be included, this did not explain the 'fundamental inconsistencies of fact': [37].

14. The Tribunal did not accept that the applicant's parents had disowned him, based on his evidence at hearing (including evidence that he sends his parents money) which it considered was not indicative behaviour of an estranged relationship, and considered that it could not make a finding that the applicant has depression, anxiety or any other medical condition without any expert opinion: [38].

15. Despite being aware of the importance of giving the benefit of doubt to persons claiming protection, when considering the evidence cumulatively and having regard to the applicant's narrative the Tribunal did not find the applicant to be credible: [41], [43].

16. The Tribunal did not accept that the applicant had been threatened or physically harmed in the past, or that he would be if returned to India. The Tribunal found that the applicant did not face a real chance of serious harm for any reason if returned to India and therefore found he did not meet s 36(2)(a): [44].

17. For the same reasons, the Tribunal found that the 'real risk' element of s 36(2)(aa) was not met: [45].

1. On 26 September 2019, the Applicant applied to this Court for judicial review of the Tribunal's decision (Originating Application).
2. The application was required to be made within 35 days of the Tribunal's decision. In accordance with section 368(2) of the Migration Act, at the time of the Tribunal decision the decision was taken to have been made on the day and at the time the written statement was made. This is to be contrasted with the date that the Applicant was notified of the refusal. Accordingly, the application to this Court was made three days out of the prescribed time limit. Accordingly, the Applicant requires an extension of time within which to pursue the substantive matter in this Court.
3. In explaining the delay in seeking review, the Originating Application stated:

1. I was "note" about the decision on 24 August 2019; and

2. I "intempted" to lodge my file within time.

1. This Court understands paragraph 1 to say that he was notified about the decision on 24 August 2019, and paragraph 2, that he attempted to file the application within time. The Applicant lists four grounds of alleged error in the Tribunal's decision, discussed below.

1. On 22 October 2019, the Minister filed its response and opposed the making of the orders sought by the Applicant. The Minister submitted that the Applicant had not adequately explained the delay in seeking review, and the decision under review was not affected by jurisdictional error.
2. On 12 August 2020, the Minister filed a court book (Court Book) marked as exhibit R1 in this proceeding.
3. On 5 September 2026, a registrar of this Court issued orders and provided the Applicant with an opportunity to file an amended application. He did not.
4. On 2 March 2026, the Minister complied with the Registrar's order and filed written submissions. The Applicant indicated that he had received and read those at hearing.
5. On 26 March 2026, the Minister's representative filed an affidavit confirming service of the court book and the Minister's submissions. Accordingly, the materials before the Court are:

(a) an Amended Application (it being amended this morning to seek a writ of mandamus);

(b) the Applicant's Affidavit appending the Tribunal's decision;

(c) a Court Book numbering some 106 pages, filed on 12 August 2020; and

(d) the Minister's Submissions.

1. Section 477 of the Migration Act governs the time limit in which applications are to be made to this Court:

(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:

(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.

1. Noting the date of the Tribunal's decision, as has already been indicated, the application to this Court was three days late. Consequently, the Court must consider the two limbs of section 477(2) of the Migration Act to determine whether it is appropriate to grant an extension of time.

Section 477(2)(a)

1. The first limb requires a consideration of whether the application has been made to the Court in writing, giving reasons as to why the extension of time should be granted. As the Court has already explained, that matter has been satisfied, although the explanation is somewhat wanting. For that reason, the Applicant was provided with a further opportunity to provide an explanation for the lateness of the application this morning.

Section 477(2)(b)

1. In relation to the second limb the Court must consider whether it is in the interests of the administration of justice to grant an extension of time. The factors which the Court may consider under this limb are not limited. However, as per the reasoning in Hunter Valley Developments v Cohen,[3] confirmed in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[4] the most common factors considered by the Court in these matters include the length of delay, the explanation for the delay, whether the respondent would suffer any prejudice, the impact on the Applicant and whether the proposed substantive application for judicial review has merit.
2. In determining if a proposed application has merit, the Court will only do so at a reasonably impressionistic level. Importantly, an Applicant need therefore only identify an arguable case, which may not yet be fully developed, that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension of time being granted - and the authority for that proposition is to be found at MZAIB v Minister for Immigration and Border Protection.[5]
3. For example, if the delay is lengthy and unexplained, the Applicant may be required to show that the case is strong or even exceptional. In such a case, a proper exercise of the power conferred by section 477(2)(a) will not require the Judge to confine their consideration of the merits to an assessment of what is reasonably arguable or some similar standard. In other cases, the proposed ground of review may be hopeless, but it may be necessary to examine the proposed application in some detail to reach that conclusion.

1. There is no contest that the application was three days late. It is the Court's view that that delay is moderate, but in any case, this factor weighs against granting the Applicant an extension of time.

1. The Applicant indicated to the Court that there was no-one to assist him with the application and that he did not know about the 35-day time limit. Having regard to the import of these matters to the Applicant, those reasons do not provide a satisfactory explanation for the delay. This factor weighs against granting the Applicant an extension of time.

1. It is conceded that the Minister would not suffer any significant prejudice if the extension was granted, and this factor is a neutral factor in the Court's assessment.

1. Mr Michelon quite properly agreed with the proposition that the impact on the Applicant of not granting the extension of time would be significant. This factor weighs in favour of granting the Applicant's extension of time application.

1. The final and most significant factor in determining whether to grant the Applicant an extension of time to file the judicial review application is the merits of the now amended Originating Application.
2. At hearing, the Applicant was given an opportunity to convince the Court that the underlying application had merit. He made no submissions in respect of any of the articulated grounds of review. He made no attempt to convince this Court that the decision of the Tribunal was affected by jurisdictional error. The Minister had previously submitted that the Tribunal's decision was not affected by jurisdictional error, and the Minister's representative referred to and relied upon these submissions made on behalf of the Minister.

* Breach of the rule of natural justice under section 5(1)(a) and section 6(1)(a) of the Administrative Decision (Judicial Review) Act 1977 (ADJR Act). 1. Failure to provide appropriate opportunity to be heard, before the decision.

The Tribunal failed to provide appropriate time to provide further information and submissions.

1. Ground One alleges a breach of natural justice. That breach is unexplained. In circumstances where the Tribunal invited the Applicant to attend a hearing, which he attended and gave evidence at and presented arguments, in circumstances where the Tribunal advised the Applicant that he could provide any additional evidence before the hearing and he did not, and in circumstances where the Tribunal raised its concerns about the inconsistencies in his written claims and his oral evidence at the hearing, it is immediately apparent that the Tribunal complied with the exhaustive natural justice obligations imposed upon it. Accordingly, Ground One lacks merit and would likely be dismissed.

* Improper exercise of power under section 5(1)(e) and section 6(1)(e) of the ADJR Act. 1. A failure by the decision maker to comply with the duty not to take into account irrelevant considerations: section 5(2)(a) of the ADJR Act and to take into account relevant considerations: section 5(2)(b) of the ADJR Act in the exercise of the power. 2. An exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case section 5(2)(f) of the ADJR Act 3. An exercise of power that is so unreasonable that no reasonable person could have so exercised that power: section 5(2)(g) of the ADJR Act. 4. The decision was made on irrelevant considerations and thus, reached a mistaken conclusion.

1. Ground Two asserts a number of particulars.
2. Firstly, that the decision-maker took into account irrelevant considerations. That particular is not particularised and it cannot be taken any further. The Applicant failed to identify any irrelevant considerations taken into account by the Tribunal.
3. Secondly, that there was an exercise of discretionary power in accordance with a rule or policy without having regard to the merits of the particular case. It is clear from the decision of the Tribunal that it considered the Applicant's material, including the written statement of claim provided with the visa application. It is also immediately apparent that the Tribunal took into account the oral evidence given by the Applicant. The Tribunal did not purport to exercise any discretionary power in this case, and the circumstances of the case did not give rise or the need for the Tribunal to consider doing so.
4. Thirdly, that the exercise of power was so unreasonable that no reasonable person could have exercised the power. There is nothing in the Tribunal's decision which suggests that it was legally unreasonable, illogical or irrational. Based on the clear inconsistencies in the Applicant's evidence given over time, for which the Applicant could not advance a satisfactory explanation, it was reasonably open to the Tribunal to find that the Applicant was not a credible witness and reject his claim.
5. Ground Two gives no rise to jurisdictional objection.

* The Tribunal's Decision is affected by apprehended bias.

Particulars

1. The Tribunal didn't show any interest on the applicant and witness statement and continued to face against them.
2. The tribunal appeared to have made up his mind prior to review the full evidence.

1. It is said that the Tribunal's decision is affected by bias because the Tribunal did not show any interest in the Applicant and/or his witness statement and appeared to have made up its mind about the merits of the matter without considering the matter as a whole. It is not apparent that this ground reveals jurisdictional error. The allegation of bias must be distinctly made and clearly proven. The Applicant has done neither of those things. Nothing in the material before the Court could rationally give rise to an allegation that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an open mind to the decision.
2. At paragraphs 10 to 32 of the Tribunal decision, it properly summarised the Applicant's claims in his written statement and the oral evidence given at the hearing, and it tested its concerns with the Applicant at the hearing. It was open to the Tribunal, based on the significant and unsatisfactorily explained inconsistencies in the Applicant's claims, to find that he was not a credible witness. There is no reason to suspect that the Tribunal approached this case in an unorthodox way or affected by bias.
3. So, ground three gives no rise to jurisdictional error.

1. Ground Four asserts that the decision amounts to jurisdictional error. This is an unparticularised assertion and cannot advance the matter further. It does not give rise to a finding of jurisdictional error.

1. For these reasons, it is apparent that the merits of the underlying application are weak and this factor weighs against granting the Applicant an extension of time.

1. Mindful, however, of the Court's obligation towards unrepresented litigants, the Court has scrutinised the application, the materials before the Tribunal and the Tribunal's decision, to identify any jurisdictional error. The Court is satisfied that, having read the Applicant's grounds as broadly as possible, and remaining alive to the possibility of jurisdictional error on behalf of the Tribunal, that nonetheless, there was no error disclosed in the Tribunal's finding in part or in whole, and the Court is not persuaded that there is a reasonably arguable case of jurisdictional error in this matter.[6]
2. Because the application in this case was filed three days late and outside the statutory timeframe, as indicated the Court can only grant an extension of time for the application if the Court is satisfied that an extension is in the interests of the administration of justice. Taking into account all the matters referred to, particularly the absence of a satisfactory explanation for the delay, and the lack of any reasonably arguable case of jurisdictional error on behalf of the Tribunal, the Court is not satisfied that it is in the interests of justice that time be extended in this matter.

1. The Court is satisfied that costs should follow the cause and is further satisfied that the costs sought by the Minister are reasonable, having regard to the effort that has been expended in relation to the matter.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns.

[1] Migration Act 1958 (Cth) s 36(2).

[2] Migration Act 1958 (Cth) ss 338A(1)(c), 474, 476(2)(a), 476(4).

[3] [1984] FCA 176.

[4] [2022] HCA 28.

[5] [2015] FCA 1391.

[6] MZAIB v Minister for Immigration and Border Protection [2014] FCA 1391, [59]-[77], [100], [112]-[113].