Damuni v Minister for Immigration and Citizenship – Leave to Extend Time Appeal Dismissed

Original Word Document (99.7 KB) Federal Court of Australia

Damuni v Minister for Immigration and Citizenship [2026] FCA 474

| Appeal from: | Damuni and Minister for Immigration and Multicultural Affairs [2025] ARTA 470 |

| File number: | NSD 1548 of 2025 |

| Judgment of: | NEEDHAM J |

| Date of judgment: | 22 April 2026 |

| Catchwords: | MIGRATION – application for leave to extend time to appeal from a decision of the Administrative Review Tribunal – where Tribunal did not revoke decision of a delegate of the Minister to cancel the applicant’s visa – where applicant had a “substantial criminal record” and did not pass the character test – leave not granted – not necessary in the administration of justice to extend time – Tribunal did not fail to take into account the legal consequences of its decision – Tribunal did not fail to consider the impact of the applicant’s removal on the applicant’s family and gave it moderate weight – where greater weight would not cancel out the unacceptable risk of harm to the Australian community – application dismissed. |

| Legislation: | Migration Act 1958 (Cth) ss 189, 197C, 198, 477A, 499, 501, 501CA, 501E

Migration Regulations 1994 (Cth) reg 2.12AA |

| Cases cited: | BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128

FPK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 723

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321

Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2025] FCA 1342

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1

Ngatoko v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1165

Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579

Ministerial Direction 90 – Visa refusal and cancellation under s ection 501 and revocation of a mandatory cancellation of a visa under s ection 501CA

Ministerial Direction 110 – Visa refusal and cancellation under s ection 501 and revocation of a mandatory cancellation of a visa under s ection 501CA |

| Division: | General Division |

| Registry: | New South Wales |

| National Practice Area: | Administrative and Constitutional Law and Human Rights |

| Number of paragraphs: | 55 |

| Date of hearing: | 25 November 2025 |

| Counsel for the Applicant | Mr C Fitzgerald |

| Solicitor for the Applicant | Zarifi Lawyers |

| Counsel for the Respondents | Mr T Liu |

| Solicitor for the Respondents | Australian Government Solicitor |
ORDERS

| NSD 1548 of 2025 |

| BETWEEN: | SIVANIOLO DAMUNI

Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | NEEDHAM J |

| DATE OF ORDER: | 22 APRIL 2026 |
THE COURT ORDERS THAT:

1. The application for leave to extend time should be dismissed, with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NEEDHAM J:

Background

1 This is an application for an extension of time under s 477A of the Migration Act 1958 (Cth) to appeal from a decision of the second respondent, the Administrative Review Tribunal, not to revoke the decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to cancel the applicant’s visa.

2 The applicant relies on two affidavits, his own affirmed 1 September 2025, and that of his solicitor, Mr Ziaullah Zarifi, affirmed 27 October 2025. Mr Zarifi’s affidavit annexes a proposed amended originating application for review.

3 The applicant is a citizen of Fiji. He arrived in Australia on 27 May 1991 when he was five years old with his father, and his mother and siblings joined them a few years later.

4 On 31 March 2003, the applicant was granted a Class BB Subclass 155 Five-Year Resident Return visa.

5 On 24 February 2023, the applicant was convicted in the County Court of Victoria of armed robbery and intentionally causing serious injury, and was sentenced to a total of two years and eight months’ imprisonment. The Tribunal’s reasons set out the criminal history preceding this most recent conviction at [33] to [36] and described the criminal history as “lengthy” (the first imprisonment being in October 2020, and continuing throughout periods when the applicant was on bail).

6 On 1 May 2023, the applicant’s visa was cancelled under s 501(3A)(a)(i) of the Migration Act on the ground that the delegate was not satisfied that the applicant passed the character test due to his “substantial criminal record”.

7 On around 9 May 2023, the applicant made representations through his then-legal representatives to the Minister requesting that the original decision be revoked.

8 On 4 February 2025, another delegate of the Minister refused to revoke the earlier delegate’s cancellation decision.

9 The applicant lodged an application for review with the Tribunal on 7 February 2025. The hearing was held on 10 April 2025. The applicant was unrepresented at the hearing.

10 On 24 April 2025, the Tribunal delivered its decision to affirm the non-revocation decision.

11 The deadline for the lodging of an appeal is 35 days after the Tribunal’s decision, being 29 May 2025: s 477A(1) of the Migration Act.

Should the Court extend time?

12 The Court may extend the appeal period on the grounds set out in s 477A(2):

The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Court 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 Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

13 The application fulfils the requirements of s 477A(2)(a).

14 In determining for the purposes of s 477A(2)(b) whether it is “necessary in the interests of the administration of justice” to order an extension of time, relevant considerations include:

(a) the length of the delay;

(b) the reasons for the delay;

(c) any prejudice to the respondent and third parties if leave is granted; and

(d) merits of the proposed grounds of appeal.

See FPK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 723 at [12].

15 In assessing whether it is necessary in the interests of the administration of justice to extend time, it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”: Tu’uta Katoa v Minister for Immigration, Citizenshi p, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at 17. However, as the High Court continued at [18]:

… there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) 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. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

16 Given that the Minister has agreed that there is no prejudice to him caused by the applicant’s delay, and will not oppose leave to rely on the proposed amended originating application for review should I grant an extension of time, I will focus on the length and reasons for the delay, and the merits of the proposed appeal.

Length and reasons for delay

17 The present application for extension of time was filed on 1 September 2025, being approximately three months out of time.

18 The applicant deposed that he received a hard copy of the Tribunal’s decision sometime after 24 April 2025, which was delivered to the detention centre by mail. He said that he only read the first page, and did not see any information about the process or timeframe for lodging an appeal. He believed that the appeal process to the Court was “automatic”. His mental health declined following notification of the Tribunal’s decision and he “felt extremely sad, depressed, and deeply unmotivated with life in general”.

19 Around two weeks before the applicant filed the current application, the applicant spoke with a fellow detainee who advised him that once the Tribunal’s decision is delivered, he would have “9 days to apply to the Federal Court”. The applicant deposed that as a result, he “believed it was far too late to do anything about [his] case”.

20 On 22 August 2025, the applicant signed a Notice of Intention to Remove from Australia for voluntary removal to Fiji.

21 The applicant subsequently spoke to another detainee who told him that “it is not too late to fight the Tribunal decision”. That detainee gave the applicant the contact details of his lawyer, Mr Zarifi. The applicant spoke with Mr Zarifi on 28 August 2025.

22 The applicant said that he has been diagnosed with schizophrenia.

23 The applicant’s submission was that his delay is explained by a combination of his position as a lay person who did not have legal representation and was in immigration detention at all material times and suffers from schizophrenia, and his mistaken belief that the process of appeal was automatic.

24 As the respondent submitted, and I agree, the delay of three months is not in the category of the worst case. The respondent went on to submit that the reasons for the delay lack “persuasive detail” and that there was no explanation of how schizophrenia affected the applicant’s ability to file on time.

25 Taking all of the above factors into account, I find that the applicant has been able to explain his delay to a satisfactory level. While he did not do so immediately, when he did speak to a lawyer on 28 August 2025, his application was filed promptly on 1 September 2025. Prior to that, he had had no legal advice. The delay is not significant, and the respondent does not point to any prejudice. Accordingly, I find that the delay in filing is no reason not to extend time.

26 I now turn to the merits of the application.

Merits of the proposed grounds of review

27 By its proposed amended originating application for review, the applicant advanced two grounds of review:

1.    The Tribunal erred jurisdictionally in its assessment of the ‘legal consequences of the decision’ by:

a.    misinterpreting or misapplying paragraph 9.1 of Direction No. 110 issued under s 499(1) of the Migration Act; and/or

b.    failing to lawfully consider the legal consequences of its decision for the Applicant logically, rationally and reasonably and in the way required by s 501CA(4) of the Migration Act.

…

2.    The Tribunal’s decision is vitiated by jurisdictional error as the Tribunal:

a.    failed to lawfully consider a mandatory relevant consideration; or

b.    misapplied or misconstrued a ministerial direction it was bound to comply with,

concerning the impacts of the Applicant’s removal on his family members Australia.

…

(strikeouts and underlines removed, and particulars omitted)

28 The applicant took issue with the Tribunal’s consideration of whether there was “another reason” for revocation under s 501CA(4)(b)(ii) of the Migration Act. In carrying out that assessment, the Tribunal was required to follow Ministerial Direction 110 – Visa refusal and cancellation under s ection 501 and revocation of a mandatory cancellation of a visa under s ection 501CA: s 499(2A) of the Migration Act.

Did the Tribunal fail to take into account the legal consequences of the decision?

29 By ground 1, the applicant submitted that the Tribunal either misunderstood or misapplied s 501CA(4) or paragraph 9.1 of Direction 110, or, alternatively, failed to take into account the “legal consequences of the decision” which is a mandatory consideration under paragraph 9(1)(a) of Direction 110. Paragraph 9.1(1) refers, relevantly to the application, to the legal consequences of removal from Australia and detention pending removal under ss 198 and 189 of the Migration Act respectively, and the prohibition from applying for any other class of visa except a Bridging R (Class WR) visa pursuant to s 501E of the Migration Act and reg 2.12AA of the Migration Regulations 1994 (Cth). The applicant submitted that the Tribunal erred by failing to take these legal consequences into account.

30 The Tribunal’s determination in relation to this consideration appears at [125]-[127] of its decision:

Other consideration 1: Legal consequences of a decision under s 501 or 501CA

1. Paragraph 9.1 deals with the legal consequences of a decision under s 501 or 501CA. This other consideration provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198, liable for removal from Australia as soon as reasonably practicable in the circumstances specified in that section.

2. This other consideration then goes on to consider non-citizens who are covered by a protection finding (as defined in s 197C of the Act), and those who are not.

3. Neither party has raised any claims in relation to this other consideration. There is no evidence that this other consideration is relevant to the Applicant’s circumstances. The Tribunal therefore gives this other consideration neutral weight in the balancing exercise.

31 In NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1, which counsel for the respondent described as the “wellspring” of the principles in relation to consideration of the legal consequences of a decision, Allsop CJ and Katzmann J held at [9]-[10] that in exercising his discretion under s 501(1) of the Migration Act:

[t]he Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.

The Minister was required to take into account the legal consequences of his decision. These consequences (indefinite detention) flowed from Australia’s obligation of non-refoulement and the terms of the Act.

32 In Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146, the Full Court observed at [84]:

The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation. Another expression of this fundamental proposition is the well-established principle that a broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it. It follows that, in making a decision under s 501, the Minister is obliged to consider the direct and immediate consequences that the Migration Act attaches to that decision ...

33 The applicant submitted that the Tribunal’s determination was wrong both in fact and in law, as the parties had in fact raised claims under paragraph 9.1 of Direction 110 and it was mandatory for the Tribunal to consider the legal consequences for the applicant regardless of any representations made.

34 The applicant pointed to the following representations made by himself and his legal representatives to the Minister when requesting revocation of the cancellation decision:

(a) “All of my immediate family live here in Australia, I have no family back in Fiji”

(b) “My children live here in Australia. I wish not to be separated from them”

(c) “My children would suffer immensely if I was deported because they would suffer the loss of their father”

(d) “… forcing [the applicant] to leave his loving family in Australia with[out] the possibility of ever returning would [c]ause irreversible harm to his close family members …”

(e) “If I was deported to Fiji, it would be very stressful for me. I don’t know anyone in that country …”

35 Further, the Minister had stated in its Statement of Facts, Issues and Contentions of the Respondent in the proceedings before the Tribunal:

88.    The Minister accepts that a consequence of the applicant’s visa cancellation and its non-revocation is that it will be very difficult for the applicant to return to Australia; and this is the intended legal consequence of the protective regime.

36 The Minister submitted that the Tribunal addressed the legal consequence of detention pending removal and removal and exclusion from Australia at [69] of its decision in its summary of incidents that the applicant had been involved in since entering detention, and at [140] where the Tribunal considered possibility of “never returning”. The Minister sought to distinguish NBMZ from the present case by submitting that the legal consequence of not being able to apply for certain visas under s 501E was not “direct and immediate”. The Minister relied on obiter remarks made by Wheatley J in Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2025] FCA 1342 at [88], who found that the consequences of s 501E are not direct and immediate as that provision “is not a complete absolute bar to the making of a visa application” given that s 501E(2) does not prevent a person from applying for a protection visa or another visa specified in the regulations.

37 I find that the matters raised by the applicant do not disclose any error of the kind suggested. The Tribunal acted on the basis that the decision had legal consequences, which consequences were the removal of the applicant to his home country, Fiji. The Tribunal considered the possibility of his “never returning” (at [144]), and the fact that such removal would be effectively permanent (cf Manebona at [91]-[92]).

38 The application lacks merit in relation to ground 1.

Did the Tribunal fail to consider the impact on the applicant’s family?

39 By ground 2 of the proposed application for review, the applicant contended that the Tribunal erred by failing to consider the impact of the applicant’s removal on the applicant’s family members. Paragraph 8.3(1) of Direction 110 provides:

Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

40 The applicant’s four siblings, mother, and two children are living in Australia. The applicant referred to these family members in a handwritten statement provided to the Minister at the revocation proceedings that his entire family would be “affected dearly” if he were removed. The applicant’s sister and mother also provided statutory declarations for the revocation request. The applicant referred to statements made by his sister that removal would “have an enormous effect on our family … It would be a big loss if [the applicant] had to leave Australia and we would all suffer a lot”.

41 In determining paragraph 8.3 of Direction 110, the Tribunal considered the statutory declarations made by the applicant’s sister and mother. The Tribunal noted the evidence regarding the applicant’s faith, his drug use leading to him being asked to leave the family home, the support provided by his sister, and that he was considered to be a “supportive uncle” (at [100]). The Tribunal also noted that the applicant has not had contact with his two children, who reside interstate, for a number of years, but has expressed a desire to reconnect (at [101]). Ultimately the Tribunal afforded this consideration moderate weight (at [103]).

42 The applicant submitted that the Tribunal failed to consider in its reasons representations made in respect of the impact of the applicant’s removal on all of his family, not just his mother and sister; his sister’s evidence that the family was “close-knit” and the “enormous effect” of his leaving; and his mother’s statement that his extended family all needed him to remain in Australia.

43 The respondent pointed to the fact that the Tribunal referred to the applicant’s children (at [101]) and that at [102] acknowledged the bond the applicant shared with his family, and his hopes to reunite with his children. The applicant lives in a different state from his children, having moved away after incidents of family violence conducted by him against their mother. The Tribunal took this into account (at [111]).

44 At [140]-[142] of its decision, the Tribunal considered “an overarching other consideration” under paragraph 9(1) of Direction 110 raised by the applicant, which included causing “irreversible harm to his close family members”. The Tribunal found that:

… there is little evidence of the ‘irreversible harm’ that would be caused to the Applicant’s close family members. The Applicant’s mother and sister provided a statement in support of the Applicant in May 2024, but neither was called upon to give evidence to the Tribunal, and there were no updated letters of support from any family member prior to the Tribunal hearing in April 2025.

45 The applicant took issue with the Tribunal’s finding that there were “no updated letters of support from any family member”, from which it can be inferred that the Tribunal considered those statements to be dated. The applicant submitted that this was a material error; had the Tribunal considered the effect of his removal on all of his family, the Tribunal could have afforded paragraph 8.3(1) of Direction 110 more weight and therefore may have reached a different conclusion (see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [7]).

46 The Minister submitted that the Tribunal’s decision regarding the asserted impact of the applicant’s removal on his family was “careful and detailed”, and that it was open to the Tribunal to assign this consideration the weight that it did. He submitted that the Tribunal’s decision reflected the structure and substance of the applicant’s case at the time, relevant aspects of which were the lack of witnesses called and the fact that no updated letters from any family member were provided.

47 Relying on BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128 at 20, the Minister further submitted that the applicant had conflated the “significant distinction between the requirement to have regard to particular considerations (as specified in the Direction) … [with] a requirement to have regard in making the decision to the content of the representations concerning that factor”. As Colvin J observed, the Direction – in that case Ministerial Direction 90 – Visa refusal and cancellation under s ection 501 and revocation of a mandatory cancellation of a visa under s ection 501CA – imposed the former but not the latter requirement. In other words, a failure to expressly refer to particular information that may be relevant to a consideration does not amount to a failure to consider that information. As Colvin J observed at [20]-[21] of BLBY:

… where the Tribunal has addressed the consideration to which it is required by the Direction to have regard and has addressed the weight to be given to that consideration, a failure to comply with the Direction cannot be demonstrated on the basis that it might be said that there is a failure to refer expressly to a particular aspect of the representations that may be relevant to that consideration, less still particular evidence that might be said to be relevant to that factor. In short, there must be particular attention to precisely what is required by the Direction and the need for the Direction to be consistent with the nature of the discretionary power conferred by s 501CA(4).

It follows that in those cases where the Tribunal has directed attention to the factor to which it is to have regard then in all likelihood it will have complied with the Direction (noting that any aspect of the reasoning may be relied upon to support a separate basis for alleged jurisdictional error such as unreasonableness or illogicality or deliberation that lacks the characteristics and qualities expected of the Tribunal as the repository of the authority to undertake a merits review).

48 In the Minister’s submission, given the above principles, the Tribunal’s focus on the applicant’s mother and sister at [98]-[101] of its decision did not constitute a failure to consider the interests and impact of all the family members resident in Australia. Rather, it reflected the fact that they had provided statements of support to the applicant which “comprised the entirety and substance of the applicant’s case before the Tribunal”. The Minister submitted that the material now relied upon to support ground 2, such as the letter of 7 June 2024 from the applicant’s then-representative to the Department of Home Affairs, was not before the Tribunal at all. He submitted, ultimately, that ground 2 does not have sufficient merit to support an extension of time.

49 I agree that there was no error in the Tribunal’s reasons in relation to the applicant’s family. The Tribunal decision evaluated more than merely the applicant’s mother and sister; the member looked at separation from his family more generally (at [142]) and noted the relationships that the applicant had with other family members.

50 This is not such a case as Ngatoko v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1165 (Feutrill J) where the Tribunal did not refer at all to the effect of removal of the applicant on his minor children and sister (at [60]). The Tribunal in this instance expressly referred to it, and afforded this factor “moderate” weight. Had the Tribunal given the factor greater weight, it is still difficult to see that this factor would cancel out the risk of harm to the Australian community which the Tribunal found – in a manner which is not complained of by the applicant – to be “unacceptable” (at [82]).

51 This is in accordance with paragraph 7(2) of Direction 110, which allocates greater weight to the protection of the Australian community. An unacceptable risk to the Australian community is the ‘first among equals’ of primary considerations in paragraph 8.1 of Direction 110. Paragraph 7 provides:

…

(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other con s iderations.

(3) One or more primary cons id erations may outweigh other primary considerations.

52 While the bar of materiality in LPDT is low, even were I to find that the Tribunal should have afforded more weight to this factor, any error would not have been material in the required sense, given that the risk to the Australian community was found to be “unacceptable” and a factor which attracts greater weight than that of the impact on the applicant’s family, even if that factor is restricted only to the “best interests of minor children in Australia” (paragraph 8.4).

53 The application lacks merit in relation to ground 2.

Determination

54 Accordingly, while the applicant has shown that the delay is not insuperable, there is no utility in an extension of time because the grounds proposed lack merit.

55 The application for leave to extend time should be dismissed, with costs.

| I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham. |
Associate:

Dated: 22 April 2026