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[2026] HCA 27
respondent. Application dismissed with costs.
1 cited instrument linked from this judgment.
The High Court dismissed the plaintiff's application because he challenged the original visa refusal directly instead of using the available review route concerning the Tribunal's decision to end his merits review. The Court also found that the delegate had considered the 2024 DFAT report and that the overall reasoning, including the plaintiff's personal circumstances, did not establish jurisdictional error. Because the application was abusive and lacked merit, there was no basis to extend the filing time. The order was dismissal with costs.
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2,685 words · generated 03/10/2026
The plaintiff was born in Nepal in 2001 and arrived in Australia on a student visa in or around February 2022. In 2024, he was convicted of 14 offences involving dishonestly obtaining financial advantage by deception. The conduct targeted members of the Nepali community in Australia. The judgment records that material identifying him had circulated online among community members in Australia and Nepal, and that he believed he would be harmed if returned to Nepal. He had been in immigration detention since mid-2025: [1].
On 12 August 2025, he applied for a Protection (Class XA) (Subclass 866) visa. A delegate refused the application on 24 November 2025: [2]. The delegate accepted that the plaintiff might face degrading treatment from families or acquaintances of people to whom he owed money, and found that the claimed harm met the statutory description of significant harm under s 36(2A) of the Migration Act: [7].
The delegate nevertheless found that the plaintiff could obtain protection from an authority in Nepal, for the purposes of s 36(2B)(b). The decision referred to country information about the Nepal Police, the criminal justice system and the courts. It cited both the 2019 and 2024 DFAT country reports. In the delegate's analysis, the risk depended in part on the plaintiff's ability to repay the money. The delegate recorded that the plaintiff said he was willing to pay, that his family ran a successful business in Nepal, and that there was no information showing Nepali authorities would withhold protection or fail to investigate and prosecute serious harm: [8].
The plaintiff applied to the Administrative Review Tribunal for merits review. His hearing was listed for 5 February 2026. The Tribunal was told that hearing documents had been hand-delivered and transport arrangements made. On 4 February, the plaintiff requested an adjournment, saying he had appointed a new lawyer. The Tribunal responded that his lawyer should contact it. No lawyer did so. The plaintiff did not attend the hearing. The Tribunal was told that he had refused transport because he felt unwell. He emailed that day seeking an adjournment, referring to illness and a medical appointment, but did not provide a medical certificate: [9]-[10].
On 9 February 2026, the Tribunal dismissed the review application for non-appearance. Its reasons addressed notice, inconsistent information about representation and illness, and the limited information given about the medical condition and its effect on attendance: [11]. The plaintiff then applied to reinstate his review application under s 102 of the Administrative Review Tribunal Act 2024 (Cth). On 11 March, the Tribunal confirmed the dismissal. It found that the plaintiff had misled it and was seeking delay without a valid reason: [12].
The plaintiff's High Court application sought prohibition to prevent the Minister acting on the Visa Decision, mandamus requiring reconsideration, and consequential relief. He filed it on 20 April 2026, after receiving a notice of intention to remove him from Australia. Interim orders temporarily prevented his removal while the proceeding was being determined: [3], [13]. He also required an extension of the 35-day filing period: [29].
The Court dismissed the application with costs. It held that the proceeding was an abuse of process and that the Visa Decision did not disclose jurisdictional error: [5], [30]-[31].
The Court's reasoning had two principal strands: the route by which the plaintiff brought the challenge, and the substance of his jurisdictional-error arguments.
First, the Court treated the available review structure as important. The Migration Act provided for merits review of the Visa Decision in the Tribunal. After the Tribunal dismissed that review for non-appearance and confirmed its dismissal, the plaintiff could have sought judicial review of the Confirmation Decision in the Federal Circuit and Family Court of Australia (Division 2). The parties accepted that the FCFCA could not review the Visa Decision itself because it was a primary decision within s 476(2)(a) of the Migration Act: [5], [18]-[19].
The Court explained the practical significance of the alternative route. If the plaintiff successfully challenged the Confirmation Decision, he could have had another opportunity for Tribunal merits review of the Visa Decision: [18]. He had not alleged that the Dismissal Decision or Confirmation Decision was affected by jurisdictional error. Instead, his High Court application attacked the underlying Visa Decision directly. The Court characterised that as an attempt to circumvent the review process and held that the application was an abuse of process: [19]-[20].
In making that point, the Court adopted the proposition that review should progress through the hierarchy of tribunals and courts. It cited San Bao Pty Ltd v Minister for Immigration and Citizenship in support of that approach: [20]. The reasoning applies even though the decision open to judicial review in the FCFCA was the Tribunal's Confirmation Decision, not the original Visa Decision.
Second, the Court rejected both arguments about the delegate's consideration of the country information and reasoning. The plaintiff said that s 499(2A) and Ministerial Direction 84 required consideration of the 2024 DFAT Report, and that the delegate's urban-police assessment relied on a rural-police observation in the 2019 report. The plaintiff argued that the 2024 report did not reproduce that observation and that the 2019 report did not logically support a positive conclusion about urban police: [22]-[23].
The Court held that the delegate had referred to the 2024 report for the s 36(2B)(b) finding. It rejected the inference that a report was overlooked merely because it was not repeated beneath the specific headings “Police force” and “Analysis”: [24]. The decision's concluding finding said the delegate had considered “the country information above”, and the Court read that statement together with the country-information discussion and citations: [8], [25], [27].
The Court also rejected the claim that the protection finding rested solely on the 2019 DFAT Report. It read the reasons as a whole, including the delegate's assessment of the plaintiff's individual circumstances. The delegate had recorded his stated willingness to repay, the family's successful business, and the absence of information indicating that Nepali authorities would withhold protection or fail to investigate and prosecute serious harm: [25]-[27]. The Court said the possibility of repayment would ameliorate the threat, and that the plaintiff's personal circumstances were critical to the delegate's conclusion: [26], [28].
The urban-police comparison was therefore not treated as the decisive basis for the finding. The Court concluded that, in context and after considering the 2024 report, the delegate's finding did not involve illogical, irrational or unreasonable reasoning: [28].
The judgment does not set out a comprehensive account of the law before this case, nor does it purport to announce a broad new test for administrative decision-making. Its contribution, on the text provided, is an application of existing statutory review arrangements and established considerations to this procedural and factual setting.
Before the decision, the relevant statutory structure described by the Court was that the Visa Decision was subject to merits review in the Tribunal, while judicial review of the Tribunal's Confirmation Decision was potentially available in the FCFCA. The judgment records that the FCFCA could not review the primary Visa Decision under s 476(2)(a), and that there was otherwise no power to remit the matter to the Federal Court: [5]. The plaintiff could still seek review of the Confirmation Decision, subject to an extension of time under s 477(2): [18].
After this decision, the immediate point is that a litigant cannot use a direct High Court challenge to the primary decision as a substitute for the available review route concerning the Tribunal decision that prevented merits review from proceeding. The Court held that the plaintiff's approach was abusive where that alternative route remained available and he had not alleged jurisdictional error in the Tribunal's dismissal or confirmation decisions: [18]-[20]. The judgment does not say that every direct High Court application in a migration matter is necessarily abusive. Its reasoning is tied to the available route and the circumstances identified in these reasons.
On consideration of material, the judgment confirms in this instance that reasons are read as a whole. The fact that a report is not mentioned under a particular heading does not alone prove it was overlooked, particularly where the decision refers to it elsewhere and states that the relevant country information was considered: [24], [27]. This is a fact-specific application, not a statement that any general reference to material will invariably prove compliance with a mandatory obligation.
The Court also treated personal circumstances and country information as components of the delegate's overall assessment. It did not decide, in the abstract, whether the 2019 report's rural-police observation could logically support a conclusion about urban police. Rather, it held that the urban comparison was not critical to the protection finding on the reasons before it: [28].
For an account of statutory extension-of-time principles, the Court identified the 35-day period under s 486A(1), the interests-of-the-administration-of-justice requirement in s 486A(2), and relevant considerations including the length and reasons for delay and the merits of the proposed application: [29]. It refused an extension in this case because the proceeding was abusive and disclosed no jurisdictional error: [30].
At [20], the Court said: “The plaintiff should not be permitted to circumvent the hierarchy of review provided for by the Migration Act.” In plain English, the plaintiff could not bypass the route that allowed the Tribunal's decision to be challenged and potentially restored to merits review by instead asking the High Court to review the original visa refusal directly. The Court relied on the availability of judicial review of the Confirmation Decision and the possibility of renewed Tribunal review if that challenge succeeded: [18]-[20].
At [24], the Court said that the absence of the 2024 DFAT Report from the “Police force” and “Analysis” headings did not mean the delegate had overlooked it. This means the Court examined the decision as a whole, rather than treating the report's placement in the reasons as decisive. The decision referred to the report in the country-information discussion, and the final finding stated that the country information had been taken into account: [8], [24], [27].
At [26], the Court observed that if the plaintiff repaid the victims, as he said he was willing to do, that would ameliorate the threat. This summarises why the plaintiff's personal circumstances mattered to the delegate's reasoning. The decision had referred to his willingness to pay and the existence of a successful family business in Nepal. The Court did not treat the delegate's assessment as resting only on the police comparison: [26]-[28].
At [28], the Court explained that the urban-area statement was not a “critical consideration”. In plain English, even if that comparison was disputed, the Court found the wider reasoning included other material factors, especially the plaintiff's circumstances and the delegate's assessment of whether authorities would provide protection. The Court therefore rejected the contention that the protection finding depended on an unsupported inference about urban police: [28].
At [30], the Court said the application was an abuse of process and disclosed no jurisdictional error. This combined the procedural and substantive reasons for refusing an extension. The formal order at [31] was dismissal with costs.
The decision is most directly relevant to a fact pattern with these features: a migration decision has an available merits-review process; the Tribunal ends the review because of the applicant's non-appearance; the Tribunal later confirms that outcome; judicial review of the Tribunal decision is available in a lower court; and the applicant instead brings a direct High Court challenge against the underlying primary decision. The Court's abuse-of-process conclusion depended on the combination of those circumstances, including that the plaintiff had not sought to establish jurisdictional error in the Tribunal decisions: [18]-[20].
It may also be relevant where a party argues that an administrative decision-maker failed to consider a report because the report is not discussed under a particular heading. The Court's approach was to examine the decision as a whole and ask whether the material was referred to and considered for the relevant finding: [24], [27]. The judgment does not establish that a general reference always cures a failure to consider a specific matter. Its conclusion rested on the contents of this Visa Decision.
The reasoning may also be relevant where a challenge to an administrative finding isolates one sentence or evidentiary inference from a wider assessment. Here, the plaintiff focused on the inference from rural police performance to urban police performance. The Court considered other parts of the reasons, including the applicant's personal circumstances, and found that the urban comparison was not critical: [25]-[28]. Whether that reasoning applies elsewhere depends on the decision's actual structure and the grounds of challenge.
The judgment does not decide the correctness of the Tribunal's findings about non-attendance, the medical appointment, or the plaintiff's explanation for missing the hearing. Those matters appear as procedural background. The High Court's abuse-of-process reasoning rested on the existence of a possible judicial-review route and the fact that the Tribunal decisions had not been challenged for jurisdictional error: [10]-[20].
The supplied judgment contains no later judicial decisions discussing or applying Plaintiff S32/2026 v Minister for Immigration and Citizenship. It is dated 5 August 2026, and the text provided records no subsequent treatment. It would therefore be unsupported to say that later courts have followed, distinguished or limited it.
The judgment itself cites several authorities. It cites MZXOT v Minister for Immigration and Citizenship and Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs in connection with the proposition that the FCFCA had no jurisdiction over the primary Visa Decision: [5] and footnote 3. It cites San Bao Pty Ltd v Minister for Immigration and Citizenship for the review-hierarchy proposition: [20] and footnote 17. It refers to Minister for Immigration and Citizenship v SZGUR in support of its treatment of whether material was overlooked: [24] and footnote 24. It cites Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs for relevant extension-of-time considerations: [29] and footnote 27.
Those citations show the authorities the Court relied on or referred to in its reasoning, but the supplied text does not give enough material to state a broader history of their treatment or the later influence of this judgment.
The judgment does not determine how the abuse-of-process analysis would apply where a person had no realistically available route to challenge the Tribunal's decision, or where the Tribunal decision itself was alleged to involve jurisdictional error. The Court's reasoning expressly noted that the plaintiff could have sought review of the Confirmation Decision and had not challenged the Tribunal decisions on that basis: [18]-[20]. Those different circumstances were not decided.
Nor does the judgment resolve the full scope of an administrator's obligation under s 499(2A) and Ministerial Direction 84 in cases where a relevant report is not identified in the decision, where the decision contains conflicting references to reports, or where the material's relevance is specifically disputed. The Court held only that, on these reasons, the 2024 report had been considered and its absence from two particular headings did not establish otherwise: [24], [27].
The decision also leaves open how much reasoning is required to connect general country information to an individual protection finding. The Court regarded the plaintiff's personal circumstances as critical and did not treat the urban-police comparison as decisive: [26]-[28]. It did not formulate a general test for when a country-information inference is sufficiently explained.
Finally, the Court did not determine whether the plaintiff's account of his phone, legal representation, illness and medical appointment would have justified reinstatement or affected the Tribunal decisions. Those facts were described in the background, but the High Court application was dismissed on the abuse-of-process and jurisdictional-error grounds: [14]-[16], [30]. The judgment therefore does not resolve the merits of any unbrought challenge to the Tribunal's handling of those circumstances.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GORDON, STEWARD AND BEECH‑JONES JJ
PLAINTIFF S32/2026 PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND CITIZENSHIP DEFENDANT
Plaintiff S32/2026 v Minister for Immigration and Citizenship
[2026] HCA 27
Date of Judgment: 5 August 2026
S32/2026
ORDER
Application dismissed with costs.
Representation
The plaintiff is represented by Heretic Law Pty Ltd
The defendant is represented by Australian Government Solicitor
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Plaintiff S32/2026 v Minister for Immigration and Citizenship
Administrative law – Judicial review − Where delegate refused application for Protection (Class XA) (Subclass 866) visa ("Visa Decision") − Where delegate considered country information prepared by Department of Foreign Affairs and Trade − Where delegate concluded plaintiff could obtain protection from authority of Nepal − Where plaintiff sought merits review of Visa Decision in Administrative Review Tribunal ("Tribunal") − Where Tribunal dismissed merits review application due to plaintiff's non‑appearance − Where plaintiff applied to Tribunal to reinstate merits review application − Where Tribunal confirmed dismissal of merits review application − Where plaintiff applied to High Court for constitutional or other writ in respect of Visa Decision − Whether application abuse of process − Whether Visa Decision affected by jurisdictional error − Whether extension of time should be granted.
Words and phrases – "abuse of process", "constitutional writ", "country information", "extension of time", "illogically", "irrationally", "judicial review", "jurisdictional error", "mandatory obligation", "merits review", "protection finding", "protection visa", "significant harm", "unreasonably".
Administrative Review Tribunal Act 2024 (Cth), ss 99, 102.
Migration Act 1958 (Cth), ss 36(2B)(b), 486A, 499.
GORDON, STEWARD AND BEECH-JONES JJ. The plaintiff was born in Nepal in 2001. In or around February 2022, the plaintiff arrived in Australia on a student visa. In 2024, the plaintiff was convicted of 14 counts of dishonestly obtaining financial advantage by deception. These offences related to conduct targeting other members of the Nepali community in Australia. Relevantly, members of the Nepali community impacted by the plaintiff's conduct have circulated online material identifying him to other members of the community, in both Australia and Nepal. The plaintiff believes that he will be harmed if he returns to Nepal. The plaintiff has been in immigration detention since mid‑2025.
Plaintiff S32/2026
Minister for Immigration and Citizenship
(2008) 233 CLR 601
(2024) 99 ALJR 387
(2026) 100 ALJR 391
(2011) 241 CLR 594
(2022) 276 CLR 579
On 12 August 2025, the plaintiff applied for a Protection (Class XA) (Subclass 866) visa. On 24 November 2025, a delegate of the defendant refused to grant the plaintiff a protection visa ("the Visa Decision"). The Administrative Review Tribunal ("the Tribunal") dismissed the plaintiff's application for review of the Visa Decision pursuant to s 99 of the Administrative Review Tribunal Act 2024 (Cth) ("the ART Act") on the basis of the plaintiff's non-appearance ("the Dismissal Decision"). The plaintiff applied to the Tribunal to reinstate his review application under s 102 of the ART Act. The Tribunal published a decision on the reinstatement application which confirmed the Dismissal Decision ("the Confirmation Decision").
On 20 April 2026, the plaintiff filed an application for a constitutional or other writ in this Court seeking: a writ of prohibition prohibiting the defendant from proceeding to give effect to, or act upon, the Visa Decision; a writ of mandamus commanding the defendant to reconsider and determine his application for a protection visa according to law; and consequential relief. The plaintiff requires an extension of time to file that application.1
By that writ, the plaintiff sought to contend that the Visa Decision was affected by jurisdictional error because the delegate: (1) failed to comply with a mandatory obligation under s 499(2A) of the Migration Act 1958 (Cth) and Direction No 84 − Consideration of Protection Visa Applications ("Ministerial Direction 84") given under s 499 of the Migration Act to consider the Department of Foreign Affairs and Trade's ("DFAT") DFAT Country Information Report: Nepal dated 1 March 2024 ("the 2024 DFAT Report") for the purposes of the finding under s 36(2B)(b) of the Migration Act in relation to the greater effectiveness of Nepali police in urban areas such that the plaintiff could obtain protection from an authority of Nepal and there would therefore not be a real risk that the plaintiff will suffer significant harm ("the Nepal Protection Finding"); and (2) further or in the alternative, in making the Nepal Protection Finding, the delegate reasoned illogically, irrationally or unreasonably.
The plaintiff's application is refused. It is an abuse of process. The plaintiff could have sought, but did not seek, review of the Confirmation Decision in the Federal Circuit and Family Court of Australia (Division 2) ("the FCFCA"). The application in this Court is an attempt to circumvent that process for merits review provided by the Migration Act. The application in this Court is directed to the Visa Decision, not the Confirmation Decision. It is common ground that the FCFCA has no jurisdiction in relation to the Visa Decision because it is a "primary decision" for the purposes of s 476(2)(a) of the Migration Act, and that there is otherwise no power to remit the matter to the Federal Court of Australia.2 In any event, contrary to the plaintiff's contentions, there was no jurisdictional error in the making of the Visa Decision.
These reasons will address the Visa Decision, the Dismissal Decision and the Confirmation Decision, including the relevant circumstances surrounding those decisions, before addressing each of the plaintiff's contentions.
"Harm from people to whom he owes money
... [T]here are grounds to believe that families or acquaintances of the victims will try to obtain the money from him if he were to return to Nepal, providing the money is not paid before his removal from Australia. The risk to the [plaintiff] is proportionate to his willingness and ability to pay money to the relevant people in Nepal.
Does the claimed harm constitute significant harm? – s36(2A) of the [Migration] Act
...
Cruel or inhuman treatment [or] punishment and degrading treatment or punishment
...
The [plaintiff] was intimidated by people he had scammed in Australia, and his details have been published on social media to force him to return the money to the victims of his scam. These actions were intentional, and it is reasonable to assume they were intended to humiliate the [plaintiff] in the eyes of the Nepali community. The [plaintiff] fears he will be subjected to similar, or possibly worse, humiliation in Nepal. While I accept that, on some level, there was justification for the victims to warn others about the [plaintiff's] scam, it was also an unnecessary act of vigilante justice, given that the victims knew the law was on their side and that Australian authorities were willing to act. Based on these events, I find it plausible that the [plaintiff] will be subjected to what could be reasonably called degrading treatment or punishment by the families of Nepalis to whom he owes money if he were to return to Nepal.
Finding
I find that the claimed harm is significant harm within the meaning of s36(2A) of the [Migration] Act." (emphasis added)
"Could the applicant obtain protection from an authority in the receiving country? – s36(2B)(b) of the [Migration] Act
Given that the degrading treatment or punishment of the [plaintiff] would be committed by non-state actors, it will be necessary to consider the capacity of the State to provide adequate protection from that harm – [s 36(2B)(b)]. In assessing this matter I considered the following [country] information.
Police force
The effectiveness of Nepal Police is limited. The Nepal Police are hindered by a lack of adequate transport, training and equipment.3 Police are less competent at maintaining law and order in rural Nepal in comparison to urban centres.4 Police effectiveness is limited by lack of resources, corruption, nepotism and a culture of impunity, particularly among low‑level officers.5 ...
Double Jeopardy
The law provides protection from double jeopardy. ... DFAT reported in March 2024 that it was 'not aware of any cases of double jeopardy, including crimes committed overseas upon return to Nepal'.6
Criminal Justice Procedure
... [DFAT] reported in March 2024 that DFAT had been told by in-country sources 'that Dalits and Madhesi in particular were sometimes arrested or detained on flimsy evidence by "racist" police from other caste and ethnic groups'.7 Police '[c]orruption and misconduct are reportedly common' in Nepal.8
...
The DFAT March 2024 country information report on Nepal reports that '[i]n‑country sources told DFAT pro bono lawyers were generally effective and competent'.9 Court cases sometimes took years to go through the courts, although others were resolved more quickly.10
... DFAT was told by in-country sources 'that bribes and threats are sometimes used against litigants or their lawyers to procure preferred outcomes. DFAT assesses that, while prevalent at all levels, the vulnerability of courts to political pressure, bribery and intimidation is more pronounced in lower-level courts'. Court rulings were 'not always implemented… Still, in-country sources told DFAT that court rulings are widely reported in the local media and that most Nepalis have at least some faith in the justice system'.11 ...
Analysis
While I acknowledge that many issues affect the effectiveness of the Nepali police, the situation is significantly better in urban areas like Birtamod, where the [plaintiff] lives. ...
As indicated above, the threat to the [plaintiff] depends on his ability to pay the money he owes. The [plaintiff] repeatedly stated he is willing to pay. His family runs a successful business in Nepal, and there is no evidence before me suggesting that they would not help the [plaintiff] fulfil his commitments. There is no information before me to indicate that the Nepali authorities would withhold their protection obligations to the [plaintiff] if he were in any serious danger, or that they would not investigate and prosecute any potential perpetrator if he were seriously harmed or injured.
As such, I find that should the [plaintiff] return to Nepal, he could reasonably expect to obtain protection from the Nepali authorities such that there would not be a real risk of suffering significant harm.
Finding
I have considered whether the [plaintiff] will face a real risk of suffering significant harm, as defined in s36(2A) of the [Migration] Act, if he returns to Nepal. In considering this criterion, I have taken into account the personal circumstances of the [plaintiff] as well as the country information above.
I find that the [plaintiff] can obtain, from an authority of the country, protection such that there would not be a real risk that the [plaintiff] will suffer significant harm as provided for in paragraph 36(2B)(b) of the [Migration] Act.
I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Nepal there is a real risk [the plaintiff] will suffer significant harm as defined in s36(2A) of the [Migration] Act. Therefore, I am also not satisfied that [the plaintiff] is a person in respect of whom Australia has protection obligations as provided for in s36(2)(aa) of the [Migration] Act." (emphasis added)
The final section of the delegate's reasons states that they took into account "the country information above". As the extract records, both the DFAT Country Information Report: Nepal dated 1 March 2019 ("the 2019 DFAT Report") and the 2024 DFAT Report are footnoted.12
Shortly after being notified of the Visa Decision that had been made on 24 November 2025, the plaintiff applied to the Tribunal for merits review. The plaintiff's review application was listed for hearing on 5 February 2026.
On 24 December 2025, the detention centre where the plaintiff was detained informed the Tribunal that hearing documentation had been hand-delivered to the plaintiff and they had arrangements in place to escort the plaintiff to attend the Tribunal hearing in person. On 4 February 2026, the day before the hearing, the plaintiff informed the Tribunal that he had appointed a new lawyer and requested an adjournment. The Tribunal advised the plaintiff that, if he had appointed a lawyer, he should have his lawyer contact the Tribunal on his behalf and request an adjournment. No lawyer contacted the Tribunal. On the day of the hearing, the plaintiff failed to appear. The Tribunal contacted the detention centre and was told that the plaintiff had refused transport because he was feeling unwell. The same day, the plaintiff sent an email to the Tribunal indicating that he needed an adjournment as he was unwell. He also confirmed he did not have a legal representative. He said he had a medical appointment on that same day and indicated that he would provide a medical certificate but failed to do so.
On 9 February 2026, the Tribunal made the Dismissal Decision, dismissing the plaintiff's application for review of the Visa Decision on the basis of the plaintiff's non-appearance. The Tribunal published reasons for that decision. In sum, the Tribunal was satisfied that the plaintiff had received appropriate notice of the listing; had provided inconsistent information about his legal representation and sickness; and had provided insufficient information about his medical condition, including how that condition prevented him from participating in the hearing, when he became aware that he was unfit to attend the hearing and when he would be fit to attend a hearing.
On 19 April 2026, the plaintiff served on the defendant an unsealed application for a constitutional or other writ, which was filed in this Court on 20 April 2026. On 20 April 2026, following an urgent hearing, this Court made interim orders restraining the defendant from removing the plaintiff from Australia until 27 April 2026. On 23 April 2026, by consent, the order made on 20 April 2026 restraining the defendant from removing the plaintiff from Australia was extended "until this proceeding has been substantially determined, or otherwise finalised or further order".
The plaintiff filed an affidavit in support of his application for a constitutional or other writ. In that affidavit, the plaintiff described what occurred at the time of the Dismissal Decision. The plaintiff states that in mid-January 2026, his phone was stolen while he was in immigration detention and that, although he was able to use his friend's phone to make calls and send emails for numbers he could remember, he could not access his emails or text messages as the authentication code needed to access these accounts was being sent to the number of his stolen phone, which he never got back. He was able to get a new phone at the end of January 2026 and, when he obtained that phone, he could see that his then legal representatives had attempted to contact him to get more information for his review application in the Tribunal. When the plaintiff then responded, the lawyers told the plaintiff that they were no longer acting for the plaintiff as the plaintiff had not responded and the file had been closed. The plaintiff then attempted to engage new lawyers. On 4 February 2026, the plaintiff contacted his current solicitor, who told the plaintiff that she was unable to assist and that the plaintiff should turn up at the Tribunal hearing the next day and ask for more time.
The plaintiff states that on the day of the hearing, he was a "mental wreck", was vomiting and had stomach cramps. The plaintiff also states that he had booked a medical appointment for that week and that detainees do not get told the date and time of the appointment until the afternoon of the day before. On the evening of 4 February 2026, the plaintiff states, he was told he had a medical appointment on 5 February 2026. The plaintiff states that he felt that he had to attend that medical appointment, as it could otherwise be another week or more before he got to see a doctor. The plaintiff attended the appointment. The doctor gave the plaintiff medicine and referred the plaintiff for a CT of the abdomen and pelvis. The plaintiff attempted to communicate this to the Tribunal on 5, 6 and 9 February 2026. These communications were considered and addressed by the Tribunal in both the Dismissal Decision and the Confirmation Decision.
The plaintiff then states that, between 5 February and 9 March 2026, he contacted two lawyers, who were unable to assist. On 9 March 2026, the plaintiff ultimately engaged a lawyer. The plaintiff sent the CT report dated 10 February 2026 to this lawyer, who made representations to the Tribunal which the Tribunal considered when making the Confirmation Decision.
This proceeding is an abuse of process.
It may be accepted that the plaintiff filed this application in this Court after being served with a notice of intention to remove him imminently from Australia. There is, however, no dispute that the plaintiff could have sought (and, subject to an extension of time being granted under s 477(2) of the Migration Act, could still seek) judicial review of the Confirmation Decision in the FCFCA and that, if the plaintiff was successful in challenging the Confirmation Decision, then on remitter the plaintiff would have a further opportunity to have the Tribunal review the Visa Decision on the merits.
The Migration Act provides for a scheme of merits review of the Visa Decision in the Tribunal,13 not judicial review of the Visa Decision in the FCFCA or the Federal Court.14 The plaintiff did not participate in the hearing before the Tribunal on 5 February 2026 and, as has been explained, the reasons for the plaintiff failing to do so were rejected by the Tribunal.15 At no time has the plaintiff sought to challenge the Dismissal Decision or the Confirmation Decision on the basis that those decisions were affected by jurisdictional error.
In those circumstances, any application for merits review, judicial review or appeal by the plaintiff should progress "through the hierarchy of tribunals and courts culminating (usually after satisfying the requirement of special leave to appeal) in a decision of this Court".16 This is the case even though the decision which the plaintiff could request the FCFCA to review is the Confirmation Decision, rather than the Visa Decision. The plaintiff should not be permitted to circumvent the hierarchy of review provided for by the Migration Act.
"The effectiveness of Nepal Police is limited. The Nepal Police are hindered by a lack of adequate transport, training and equipment.19 Police are less competent at maintaining law and order in rural Nepal in comparison to urban centres.20 Police effectiveness is limited by lack of resources, corruption, nepotism and a culture of impunity, particularly among low‑level officers.21" (emphasis added)
The plaintiff submits that that passage formed the basis for the delegate's finding under the heading "Analysis" that "[w]hile I acknowledge that many issues affect the effectiveness of the Nepali police, the situation is significantly better in urban areas like Birtamod, where the [plaintiff] lives".
First, the plaintiff alleges that, in making the Nepal Protection Finding, the delegate failed to comply with a mandatory obligation under s 499(2A) of the Migration Act and Ministerial Direction 84 to consider the 2024 DFAT Report for the purposes of the finding under s 36(2B)(b) of the Migration Act. The plaintiff's complaint is that the 2019 DFAT Report was replaced by the 2024 DFAT Report and the latter was "different in a critical respect, namely, that it did not include the negative comment on rural police forces from which the delegate extrapolated a positive statement as to the effectiveness of urban police (which the plaintiff submits was not logically available to the delegate in any event)". The plaintiff submits that any contention that the 2024 DFAT Report does not provide a basis to conclude that the observations in the 2019 DFAT Report were factually inaccurate "fails to acknowledge that not even the 2019 [DFAT] Report provides a positive statement or observation as to the effectiveness of urban police which could support the Nepal Protection Finding".
Second, the plaintiff alleges that, in making the Nepal Protection Finding, the delegate reasoned illogically, irrationally or unreasonably. The plaintiff submits that the only basis for the Nepal Protection Finding was page 29 of the 2019 DFAT Report and that there is "no logical connection" between the negative statements about rural police in the passages of the 2019 DFAT Report relied upon and the delegate's findings about the effectiveness of urban police.
Both contentions fail. First, the delegate did not fail to comply with the mandatory obligation under s 499(2A) of the Migration Act and Ministerial Direction 84. The delegate referred to the 2024 DFAT Report for the purpose of making a finding under s 36(2B)(b) of the Migration Act.22 The fact that the 2024 DFAT Report was not referred to under the headings "Police force" and "Analysis" does not mean that the report was overlooked.23 The plaintiff does not otherwise contend that the delegate was precluded from considering the 2019 DFAT Report.
Second, the delegate did not reason illogically, irrationally or unreasonably or solely based on page 29 of the 2019 DFAT Report. As the structure of that section of the reasons records, the finding in relation to s 36(2B)(b) of the Migration Act includes the statement that:
"In considering this criterion, I have taken into account the personal circumstances of the [plaintiff] as well as the country information above.
I find that the [plaintiff] can obtain, from an authority of the country, protection such that there would not be a real risk that the [plaintiff] will suffer significant harm as provided for in paragraph 36(2B)(b) of the [Migration] Act." (emphasis added)
"As indicated above, the threat to the [plaintiff] depends on his ability to pay the money he owes. The [plaintiff] repeatedly stated he is willing to pay. His family runs a successful business in Nepal, and there is no evidence before me suggesting that they would not help the [plaintiff] fulfil his commitments. There is no information before me to indicate that the Nepali authorities would withhold their protection obligations to the [plaintiff] if he were in any serious danger, or that they would not investigate and prosecute any potential perpetrator if he were seriously harmed or injured." (emphasis added)
In short, if the plaintiff paid the victims of his offences, as he said he was willing to do, then that would ameliorate the threat.
The delegate then made a finding that the plaintiff could obtain, from an authority of Nepal, protection such that there would not be a real risk that the plaintiff will suffer significant harm as provided for in s 36(2B)(b) of the Migration Act. In making that finding, the delegate took into account the country information referred to in that part of the reasons of the Visa Decision, which necessarily included the 2024 DFAT Report.
Accordingly, contrary to the plaintiff's submissions, the statement in the "Analysis" section that "[w]hile I acknowledge that many issues affect the effectiveness of the Nepali police, the situation is significantly better in urban areas like Birtamod, where the [plaintiff] lives" was not a critical consideration. Whilst acknowledging that many issues affect the effectiveness of the Nepali police, what was critical were the plaintiff's personal circumstances. Further, after expressly taking into account the 2024 DFAT Report, it was in that context that the delegate made the finding in relation to s 36(2B)(b) of the Migration Act, being that there was no information before them to indicate that the Nepali authorities would withhold their protection obligations to the plaintiff if he were in any serious danger, or that they would not investigate and prosecute any potential perpetrator if the plaintiff were seriously harmed or injured.
The plaintiff was required to make his application for a constitutional writ within 35 days of the date of the relevant migration decision.24 The plaintiff did not do so. The Court must be satisfied that it is necessary in the interests of the administration of justice to extend the 35-day period.25 In deciding that question, relevant considerations include the length of and reasons for the delay and the merits of the putative application for judicial review.26
The circumstances in this case do not justify a grant of an extension of time. The application is an abuse of process and it fails to disclose any jurisdictional error in the Visa Decision.
Migration Act 1958 (Cth), s 486A. ↩
See, eg, MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601 at 615 [11]; Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 99 ALJR 387 at 388 [2]; 426 ALR 587 at 588-589. ↩
Department of Foreign Affairs and Trade, DFAT Country Information Report: Nepal (2019) ("2019 DFAT Report") at 29. ↩
2019 DFAT Report at 29. ↩
2019 DFAT Report at 29. ↩
2024 DFAT Report at 33. ↩
2024 DFAT Report at 31. ↩
2024 DFAT Report at 32. ↩
2024 DFAT Report at 33. ↩
2024 DFAT Report at 33. ↩
2024 DFAT Report at 33. ↩
The 2024 DFAT Report was also referred to and cited in other parts of the Visa Decision, including within: Pt 5 "Findings of fact" in fn 30 (concerning the characterisation and orientation of political parties in Nepal), fn 52 (describing Hinduism as the prevailing religion in Nepal) and fn 62 (concerning attitudes towards LGBTQIA+ issues in Nepal); and Pt 6 "Refugee criterion assessment and finding − s36(2)(a)" in fns 73‑75 (concerning political opinion in Nepal). ↩
See [5] above. ↩
Migration Act, ss 476 and 476A. ↩
See [10] and [11] above. ↩
San Bao Pty Ltd v Minister for Immigration and Citizenship (2026) 100 ALJR 391 at 393 [3]. ↩
See [4] above. ↩
See [8] above. ↩
2019 DFAT Report at 29. ↩
2019 DFAT Report at 29. ↩
2019 DFAT Report at 29. ↩
See [8] above. ↩
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 605-606 [31], 616-617 [69], 623 [91]-[92]. ↩
Migration Act, s 486A(1). ↩
Migration Act, s 486A(2). ↩
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at 588-589 [12], 599-600 [40]. ↩
Application dismissed with costs.