ELL20 v Minister for Immigration and Citizenship [2026] FedCFamC2G 449

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. By application filed on 13 October 2020, the applicant seeks an order under s 477(2) of the Migration Act 1958 (Cth) (the Act) to extend time to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 25 June 2019. The Tribunal affirmed the decision of a delegate (the delegate) of the First Respondent (the Minister) refusing to grant the applicant a Protection (subclass 866) visa (the visa).

1. The following background is derived from information in the Court Book and the Minister's submissions and is not in dispute.
2. The applicant is a citizen of Fiji. She last arrived in Australia as the holder of a visitor visa, which ceased on 12 October 2015.
3. On 31 May 2016, the applicant lodged the application for the visa at the Sydney City office of the Department of Home Affairs (the Department): at CB 73. On 1 June 2016, the Department stamped the application as 'received': at CB 10.
4. On 2 August 2016, the applicant was invited to attend an interview with the Department. On 26 August 2016, the applicant attended the Departmental interview.
5. On 29 August 2016, the delegate refused to grant the visa on the basis it did not accept the applicant was closely associated with Mereoni (Oni) Kirwin (MK) or had any profile that would make her of interest to the Fijian authorities, such that she would face persecution on that basis.
6. On 23 September 2016, the applicant appointed MK as her authorised representative and recipient for the purposes of the review. On 26 September 2016, the applicant applied to the Tribunal for review of the delegate's decision. On 28 September 2016, the Tribunal stamped those documents as 'received'.
7. On 7 March 2019, the applicant and her representative, MK, attended a hearing before the Tribunal.
8. On 25 June 2019, the Tribunal affirmed the decision under review and notified the applicant by email to her representative on 26 June 2019.

1. The following summary of the Tribunal's decision is derived from information in the Court Book and the Minister's submissions and is not in dispute.
2. The issue before the Tribunal was whether the applicant was a person in respect of whom Australia had protection obligations under the refugee or the complementary protection criterion.
3. At [1]-[2], the Tribunal set out the background to the matter.
4. At [3]-[7], the Tribunal noted the criteria for a protection visa pursuant to s 36(2) of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). At [8], the Tribunal noted the mandatory considerations when assessing the criteria for the grant of a protection visa provided by Ministerial Direction No. 56 pursuant to s 499 of the Act.
5. At [9]-[17], the Tribunal set out the applicant's claims and evidence in support of her application for a protection visa.
6. The Tribunal made the following findings in respect of the applicant's claims:

(a) the applicant did not leave Fiji because she feared or suffered harm there, rather she left to visit relatives and stayed in Australia for medical reasons: at [22];

(b) the applicant joined the Pacific Indigenous Samaritan Association Inc. (the PISAI) to assist her visa application (at [24]), and that the sole reason the applicant became associated with MK, and related causes was to strengthen her claim to be a refugee: at [27];

(c) the applicant's limited involvement with PISAI meant that she did not have a sufficient profile to be of interest to the Bainimarama (Fijian) government: at [28];

(d) the Tribunal rejected the applicant's claims to have been harmed by the police following an argument she had with the Fijian Minister for Education: at [30]. The applicant agreed this claim was raised before the Tribunal to give her a better chance of remaining in Australia: at [30];

(e) the Tribunal found that the applicant did not have a political profile as a person in Fiji who was opposed to the government: at [31]-[32]; and

(f) finally, the Tribunal found that the applicant would not face harm as an indigenous Fijian to the extent that she made such a claim, because of country information indicating that there is no official discrimination: at [33].

1. At [35]-[39], the Tribunal found that the applicant did not meet the refugee or the complementary protection criterion.
2. At [40], the Tribunal affirmed the decision of the delegate refusing to grant the visa. The decision was emailed to the applicant's authorised representative on 26 June 2019.

1. On 13 October 2020, the applicant filed the originating application in which she advanced four grounds in respect of the extension of time and two grounds in respect of the substantive application for judicial review.
2. The applicant also filed an affidavit which annexed a copy of the Tribunal's decision record. The content of the affidavit, which is extracted below (without alteration) was taken into account as written submissions and formed part of the applicant's grounds for an extension of time and proposed grounds of judicial review:
   1. I am the Applicant.
   2. I make this affidavit in support of my application for a review of decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the First Respondent), and the Administrative Appeals Tribunal (the Second Respondent).
   3. The First Respondent refused my application for a Protection Visa (subclass 866) on 29 August 2016. The notification of that decision is annexed hereto and marked "Annexure A".
   4. On 29 June 2019, the Second Respondent affirmed the decision of the First Respondent. The notification of that decision is annexed hereto and marked "Annexure B".
   5. I maintain that I am a victim of the fraudulent actions of Mereoni Kirwin.
   6. Mereoni Kirwin charged me a professional fee for what she made appear was a legal service, but actually it was not because she is not a lawyer or a registered migration agent.
   7. I should be notified again of the decision of the Second Respondent.
   8. I should be given the opportunity to present my case again to the Second Respondent.
3. The Minister filed written submissions on 25 March 2021, and filed supplementary written submissions on 18 February 2026.
4. The applicant did not file any written submissions or additional evidence.
5. The parties appeared at the interlocutory hearing on 4 March 2026 at the Parramatta Registry of the Court. The applicant appeared in person and was assisted by an interpreter in the Fijian and English languages. Ms S Frankel of the Australian Government Solicitor appeared on behalf of the Minister.
6. At the hearing, the Court Book, filed by the Minister on 19 January 2021, was tendered into evidence and marked Exhibit CB.
7. Being mindful that the applicant was unrepresented, I explained to her how the hearing would proceed and the matters that would normally be considered, which I noted were not exhaustive, when determining whether time should be extended to enable her to pursue her substantive application for judicial review.

1. The applicant did not commence proceedings in this Court within the 35-day period prescribed by s 477(1) of the Act.
2. Under s 477(2) of the Act, the Court has the power to extend the 35-day limit if:

(a) the applicant has requested the extension of time in writing and provided reasons for why it is necessary in the interest of the administration of justice for time to be extended; and

(b) the Court is satisfied that it is necessary in the interests of the administration of justice for time to be extended.

1. The applicant has sought an order (in writing) that the time for making the application be extended under s 477(2) of the Act. She provided the following grounds (without alternation) in support of the application for extension of time:
   1. The person claiming to represent me at the Department of Home Affairs and the Administrative Appeals Tribunal claimed to be a lawyer through a third party who was her 'secretary' .
   2. The person claiming to represent me was not a lawyer or a registered migration agent.
   3. I was the victim of fraud.
   4. I deserve another chance to be re-notified of the decision of the Administrative Appeals Tribunal.

1. At the hearing, I explained to the applicant that the circumstances, which I noted were non-exhaustive, when considering whether to grant an extension of time, generally included: the length of the delay; the explanation for the delay; any prejudice to the Minister; and whether the proposed grounds of the judicial review application have any merit: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley); and confirmed in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [13].
2. In considering whether the grounds of the judicial review application have any merit, the Court need only do so at a 'reasonably impressionistic level': MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478. As explained to the applicant at the hearing, I need only be satisfied that the grounds of her judicial review application have some prospect of success or raise a sufficiently arguable ground of jurisdictional error on the part of the Tribunal.
3. The applicant was invited to make oral submissions in relation to each of the circumstances, and the Court has considered those submissions as follows.

1. The applicant commenced proceedings in this Court on 13 October 2020, being 437 days outside the prescribed period of 35 days from the date of the Tribunal's decision.
2. The Minister submitted that the judicial review application was filed more than 15 months out of time, constituting a very significant delay: Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [16].
3. The Court accepts the Minister's submissions and considers the delay of 437 days (15 months) to be 'excessive': Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38]. This factor weighs heavily against granting the extension of time.

1. At the hearing, the applicant said she was ignorant of the process and that the delay was due to her previous representative MK who fraudulently represented herself as a lawyer, and that the applicant had attempted to seek advice from a genuine lawyer to assist with the lodging of her judicial review application.
2. Ignorance of the law or of procedural requirements is not, of itself, a satisfactory explanation for the excessive delay. This is so even in circumstances where an applicant is unrepresented.
3. As submitted by the Minister, the applicant has not put on any evidence in support of the contention she had sought assistance or legal advice from a qualified lawyer in relation to her judicial review application. In the absence of cogent evidence explaining why the application for judicial review could not have been filed within time, ignorance of the process does not weigh in favour of extending time.
4. In relation to the allegation of fraud, it is well established that fraud is a serious allegation which must be distinctly pleaded and proved: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 (SZFDE) at [15]; citing the UK Court of Appeal in Lazarus Estates Ltd v Beasley [1956] EWCA Civ 6; [1956] 1 QB 702 at 712-13.
5. The applicant's allegation of fraud due to MK's conduct is unsupported by particulars or evidence identifying any dishonest conduct or explaining how such conduct caused the delay in commencing proceedings. The applicant has also not put on any evidence which indicates MK held herself out as a lawyer or migration agent. The mere fact of MK's involvement does not of itself establish fraud, nor does it explain why the applicant could not have filed her judicial review application within the prescribed period.
6. I am not satisfied that the excessive delay has been adequately explained by the applicant. This factor weighs against granting the extension of time.

1. The applicant made no submissions in respect of this circumstance. The Minister acknowledged that they would not suffer prejudice by the grant of an extension of time. However, as submitted by the Minister, the mere absence of prejudice does not of itself provide a sufficient basis to grant of an extension of time: Hunter Valley at 349. I consider this factor to be neutral.

1. I have considered, at a reasonably impressionistic level, whether any of the proposed grounds in the application for judicial review have any reasonable prospect of success.
2. The applicant's proposed grounds of review are as follows (without alteration):

a) I deserve another opportunity to be notified of the decision of the Administrative Appeals Tribunal because I was the victim of the fraudulent actions of Mereoni Kirwin. Mereoni Kirwin posed as a lawyer and did not provide legitimate legal advice.

a) I was not provided with proper legal advice.

b) I was not given the opportunity to have a fair hearing because of the inappropriate legal advice provided by Mereoni Kirwin who was posing as a lawyer.

1. By the first proposed ground, the applicant appears to allege some error in the notification of the Tribunal's decision on the basis that she was a victim of fraud resulting from the conduct of MK who held herself out to be a lawyer.
2. By the second ground, the applicant contends that she was not afforded a fair hearing because of MK's conduct.
3. Given the overlap between the two proposed grounds of review, they have been dealt with together.
4. In respect of the notification of the Tribunal's decision, the evidence before the Court indicates that the applicant was notified of that decision, through her authorised recipient, by email on 26 June 2019: at CB 129-147. The decision record, which was included as an attachment to the email, was dated 25 June 2019: at CB 135. The email address was that which was provided in the Change of Contact Details form lodged by the applicant on 7 March 2019: at CB 116-117.
5. As submitted by Minister, by reason of s 441G(1) of the Act, the Tribunal must give the applicant's authorised recipient any document that it would otherwise have given to the applicant. Therefore, the applicant was properly notified of the decision in accordance with ss 430A(1)(b), 441A(5), and 441G(2) of the Act, and accordingly the Tribunal was taken to have given the applicant the decision and its reasons by email to the last email address provided by the recipient in connection with the review. As such, pursuant to s 441C(5) the applicant was deemed to have received the Tribunal's decision and reasons at the end of the day in which it was transmitted, being 26 June 2019.
6. I am satisfied that the applicant was properly notified of the Tribunal's decision and any contention that the applicant should be re‑notified of that decision is misconceived.
7. In addressing the applicant's allegation that she was not afforded procedural fairness due to MK's fraudulent conduct, the Minister sought to rely upon the matters set out in Khan v Minister for Immigration and Multicultural Affairs [2024] FCA 1358 at [17] required to establish jurisdictional error based on fraud. Relevantly, that:

(1) a third party has engaged in some form of deliberate dishonest conduct, established on the balance of probabilities, established by cogent evidence: SZFDE at [48]-[51];

(2) the fraudulent conduct inferred from documentary evidence is the most probable inference (more than merely negligent or a mistake): Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 (SZLIX) at [30];

(3) the dishonest conduct affected the Tribunal's decision-making process (the proper functioning of the statutory process of review): SZFDE at [47]; Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554 at [52]; and

(4) the applicant show that she was an innocent victim of fraud, not indifferent to the conduct: Kaur v Minister for Immigration and Border Protection [2021] FCA 1026.

1. While the evidence before the Court confirms that the applicant was represented by MK, there was no evidence that MK held herself out to be a lawyer or a migration agent.
2. As emphasised by the Minister in their submissions, the applicant herself signed documents identifying MK as a 'friend' and not a lawyer or migration agent. The documents included the following:

(1) on the visa application form, the box asking whether MK was registered with MARA was ticked 'no';

(2) on the 956A form, the box asking whether a migration agent was appointed was ticked 'no';

(3) on the application for review to the Tribunal, under the heading 'type of representative', the box 'other' was checked and 'friend' written under 'please specify'; and

(4) the same response was given on the Tribunal's appointment of a representative form.

1. Further, the Tribunal's reasons record that the applicant gave evidence at the hearing that she paid MK money to obtain a visa (at [24]), and that MK completed the application without her input. However, the applicant also gave evidence that she was aware of the contents of her protection visa application before she signed it: at [30].
2. The Minister submitted that, at its highest, MK's actions may amount to negligence, which would not be sufficient to demonstrate jurisdictional error: SZLIX at [33]. I doubt MK's conduct can be characterised as negligent in circumstances where the applicant voluntarily sought her assistance, was aware of the contents of the application before it was lodged, and personally advanced and addressed her claims for protection at the interview before the delegate and at the hearing before the Tribunal.
3. In any event, as submitted by the Minister, mere negligence, carelessness, or even innocent mistake by a representative is not sufficient to establish jurisdictional error: SZLIX at [30]-[33].
4. Further, to establish jurisdictional error on the ground of fraud, the applicant must establish that the fraudulent conduct affected a particular duty, function, or power of the Tribunal: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [18]. As noted above, the applicant appeared before the Department and the Tribunal to give evidence in support of her claims for protection, and she has not put on any evidence demonstrating that MK's involvement affected the exercise of the delegate or the Tribunal's statutory functions.
5. The applicant has failed to demonstrate any failure on the part of the Tribunal to afford her procedural fairness (or a fair hearing) due to MK's conduct. Nor has she been able to demonstrate that MK's conduct affected the Tribunal's decision-making process.
6. For these reasons, I am not satisfied that grounds one or two have any prospect of success.

1. When given an opportunity to make further submissions as to why she was aggrieved by the Tribunal's decision or process, the applicant said the Tribunal failed to consider her claim that she would face persecution by the Fijian government on the basis of her political activities, including being a member or supporter of the PISAI; the Freedom and Democracy Movement (the FDFM); or her association with MK.
2. A fair reading of the Tribunal's reasons does not support the applicant's allegation that the Tribunal failed to consider her claims for protection. As submitted by the Minister, the Tribunal:
   • at [9]-[11], identified the claims and evidence provided by the applicant in her protection visa application;
   • at [12]-[14], identified the claims and evidence provided during the hearing; and
   • at [15], set out the country information before it relevant to the applicant's claims for protection.
3. I accept that the Tribunal considered all the applicant's claims and made findings in respect of each claim as follows:

(1) at [23]-[24], it had regard to and considered the claim raised by the applicant that she would face harm by the Fijian government on the basis of her PISAI membership, attendance at PISAI meetings, or association with MK; and at [27], it rejected that her conduct supported a genuine claim for protection, finding that the applicant had only engaged the conduct in Australia for the purpose of strengthening her claim to be a refugee;

(2) at [29], the Tribunal had regard to and considered the applicant's claim that she would face harm by the Fijian police on the basis of her alleged previous detention; and at [30], the Tribunal rejected the claim, finding that it did not accept that the applicant had ever been detained or ill-treated by the Fijian police; and

(3) at [31], the Tribunal had regard to and considered the claim by the applicant that she would face harm on the basis of her political profile; and at [32], the Tribunal rejected the premise that the applicant held a political profile in Fiji.

1. I am satisfied that the Tribunal considered the applicant's claims and the evidence before it, and that it made findings that were open to it on that material. The Tribunal articulated cogent reasons for rejecting the applicant's claims for protection, and while the applicant may disagree with those findings, mere disagreement is not sufficient to establish jurisdictional error.
2. I am not satisfied that the further ground of failure to consider claims and evidence has any prospect of success.
3. As none of the proposed grounds of review have any reasonable prospect of success, this factor weighs heavily against granting the extension of time.

1. Having considered and weighed the relevant factors, I am not satisfied that it is necessary in the interests of the administration of justice to extend time in this case.
2. For these reasons, the application for an extension of time must be dismissed.

1. The Minister sought costs fixed in the amount of $4,000.00. The applicant made no substantive submissions in response.
2. I am satisfied that costs should follow the event and, having regard to the work undertaken and the applicable scale for a standard migration matter, I will order that the applicant pay the amount sought.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.