Federal Court of Australia

Manu v Minister for Immigration and Citizenship [2026] FCAFC 108

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as assessed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    This appeal is from the dismissal of the appellant’s application for judicial review of a decision of the Administrative Review Tribunal affirming a delegate’s refusal to revoke the mandatory cancellation of his visa: Manu v Minister for Immigration and Citizenship [2026] FCA 99 (primary judgment or PJ). The notice of appeal, filed while the appellant was unrepresented, contains a single ground directed to the primary judge’s conclusion at PJ[28] that the Tribunal had not overlooked the evidence concerning his mother or the evidence of his witnesses. The appellant was represented pro bono on the appeal by Dr Palk of counsel. The Court is grateful to Dr Palk for the assistance rendered.

2    In substance, the appellant raises four issues. First, whether the delay in providing the Tribunal’s reasons denied the appellant procedural fairness. Secondly, whether the hearing before the primary judge was procedurally unfair in circumstances where the appellant was not legally represented. Thirdly, whether the Tribunal’s treatment of the hardship to the appellant’s family was legally unreasonable. Fourthly, that the appellant had not arranged medical or counselling assistance. The fourth issue is a new contention that was not raised before the primary judge. The appellant also sought to rely on medical evidence that post-dates the Tribunal’s decision but ultimately in the face of the Minister’s objection, did not press this, acknowledging that the fact of his mother’s medical condition was not disputed.

PROCEDURAL BACKGROUND

3    The appellant is a New Zealand citizen. His Special Category (Temporary) (subclass 444) visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). A delegate decided on 13 March 2025 not to revoke the cancellation under s 501CA(4). The appellant applied to the Tribunal on 21 March 2025. The Tribunal heard the review on 29 and 30 May 2025, and on 6 June 2025 affirmed the delegate’s decision.

4    The Tribunal did not provide written reasons until 19 September 2025, 105 days after its decision: Manu v Minister for Immigration and Citizenship (Administrative Review Tribunal, No: 2025/2491) (the Tribunal’s reasons or T). The appellant had meanwhile commenced his application for judicial review on 11 July 2025, within the time required under s 477A. His originating application alleged procedural unfairness caused by delayed reasons, failure to consider evidence concerning his mother and witnesses, and “systemic barriers”. The three review grounds are extracted in full at PJ[4].

5    The hearing before the primary judge took place on 2 February 2026, 136 days after publication of the Tribunal’s reasons. At the time of the hearing, the appellant was in immigration detention and unrepresented, although he had been represented before the Tribunal. Directions made on 17 November 2025 and orders made on 10 December 2025 permitted him to file an amended application, affidavit evidence and an outline of submissions. He did not file any of the materials permitted by those orders. The primary judge observed that the appellant made only brief oral submissions at the hearing. The appellant accepted that this was so at the hearing of the appeal.

6    The primary judge held that the delay in providing reasons, which occurred after the Tribunal had made its decision, could not establish procedural unfairness in the making of that decision. The primary judge relied on Public Service Board (NSW) v Osmond [1986] HCA 7; 159 CLR 656 at 670 (Gibbs CJ, Wilson, Brennan and Dawson JJ agreeing) and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; 272 CLR 329 at [22] and [35]-[40] (Steward J, Kiefel CJ, Keane, Gordon and Edelman JJ agreeing). The primary judge also found that the delay caused no practical injustice because the appellant commenced the judicial review proceeding within time, later had an opportunity to amend his application, and did not seek further time at any time after the Tribunal’s reasons were published to consider the reasons or obtain advice.

7    In relation to the second ground of review, the primary judge held that the Tribunal’s reasons demonstrated that it had considered and evaluated the evidence concerning the appellant’s mother and the evidence of his witnesses. The primary judge referred in particular to T[41]-[43], [46], [53]-[55], [69]-[71] and [73], and found no reason to conclude that the Tribunal had overlooked any evidence or argument.

SCOPE OF APPEAL

8    The notice of appeal contains a single ground, alleging error in the primary judge’s conclusion at PJ[28] that the appellant had not demonstrated that the Tribunal overlooked the evidence concerning his mother’s illness, the evidence of his witnesses or any other evidence or argument. This is effectively a replication of what was the second ground of judicial review before the primary judge, which alleged that the Tribunal failed properly to consider that evidence.

9    The appellant’s amended submissions advance four broader contentions: that the Tribunal’s delay in providing reasons denied him procedural fairness; that he was denied a fair hearing before the primary judge as a litigant in person; that the Tribunal’s treatment of the hardship to his family was legally unreasonable; and that the Tribunal erred in finding that he had not arranged appointments with medical professionals or counsellors to assist his rehabilitation. No amended notice of appeal has been filed. The Minister does not oppose the Court considering the first three contentions, but opposes leave being given to advance the fourth. At the hearing the appellant did not seek to amend the notice of appeal. The appellant sought instead to argue the appeal on the basis that the grounds of review before the primary judge should in effect stand as if they were the grounds of appeal before this Court. In doing this, the appellant maintained that all four broader contentions to which we have referred were within the ambit of the review grounds before the primary judge.

10    Notwithstanding the appellant’s unorthodox approach, we are satisfied that it is consistent with the overarching purpose articulated in s 33M of the Federal Court of Australia Act 1976 (Cth) to determine this appeal by reference to the first three of the appellant’s contentions which we have outlined above. That is because the Minister does not object and has responded to each ground on its merits. Those contentions arise from issues addressed in the primary judgment and no forensic prejudice has been identified. Adopting this approach aligns the determination of the case with the arguments advanced by each of the parties. We therefore grant, to the extent necessary, the appellant leave to rely upon the first three contentions as if they had been included as grounds in an amended notice of appeal. In the circumstances, no formal amendment is necessary.

11    The fourth contention, which is new in the sense that it was not advanced before the primary judge and which the Minister opposes, is addressed separately below.

THE APPELLATE TASK

12    This appeal is not a rehearing of the merits of the Tribunal’s decision. The Court must determine whether the primary judge erred in dismissing the application for judicial review. A complaint that the hearing before the primary judge was procedurally unfair requires examination of the course of that proceeding. To the extent that the complaint relates to the way in which the hearing was conducted, the appellant bears the onus of proving the alleged unfairness. A complaint that the Tribunal fell into jurisdictional error must identify error in the primary judge’s rejection of that contention.

ISSUE 1: DELAYED PROVISION OF TRIBUNAL REASONS

13    As the appellant developed his argument, we understood the nub of the first issue to be an allegation that the primary judge erred in concluding that the delay in the provision of the Tribunal’s reasons occasioned no practical injustice to the appellant in the presentation of his case on the judicial review application.

14    The appellant accepts that he received the Tribunal’s reasons before the judicial review hearing and had an opportunity to amend his application. He submits, however, that the 105-day delay, together with his lack of funds, limited literacy and inability to identify legal error, deprived him of a proper opportunity to present his case. He relies on NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470.

15    The Minister submits that NAIS concerned delay in making an administrative decision, not delay in providing reasons after the decision had been made. The Minister further submits that the appellant’s difficulties in obtaining representation and preparing his case were not caused by the delay, and that he had an opportunity to amend his application after receiving the reasons. We accept the force of the Minister’s submissions on this point.

16    The primary judge relied on AAM17 in holding that events occurring after the Tribunal made its decision could not demonstrate error in the making of that decision. The primary judge also held that any practical injustice arising from the delayed reasons could have been addressed by amendment or an application for further time. The difficulties on which the appellant relies, including his lack of representation, limited literacy and inability to identify legal error, have not been shown to have resulted from the delay. On the material before the Court, those difficulties would have affected his preparation of the judicial review application irrespective of when the Tribunal provided its reasons. The appellant has not identified error in the primary judge’s reasoning. The fact that the delay in the Tribunal delivering its reasons was substantial and regrettable does not establish that the hearing before the primary judge was procedurally unfair or that the appellant was denied a reasonable opportunity to present his judicial review application.

ISSUE 2: ALLEGED UNFAIRNESS BEFORE THE PRIMARY JUDGE

17    As presented, the gravamen of the appellant’s argument was that the primary judge denied the appellant procedural fairness by failing to take such steps as were reasonably necessary to ensure that, as a litigant in person, he had a fair opportunity to understand and present his case. There was overlap in the appellant’s submissions made on this issue with those made in relation to the first issue.

18    Procedural fairness in the proceeding before the primary judge was distinct from procedural fairness before the Tribunal. It required that the appellant be given a reasonable opportunity to present evidence and submissions on the issues to be determined: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 at [54] (French CJ).

19    In Shrestha v Migration Review Tribunal [2015] FCAFC 87; 229 FCR 301 at [53]-[54] (Mansfield, Tracey and Mortimer JJ), the Full Court held that, in managing a migration judicial review application by a litigant in person, the Court must explain in plain terms that the applicant must identify why the Tribunal’s decision was not lawfully made or was reached by an unfair process. The obligation is to provide sufficient information about practice and procedure to permit a fair hearing. It does not require the judge to provide legal advice or conduct the litigant’s case.

20    The appellant says the primary judge erred in not adopting a procedural course that was informed by the fact that he was faced with the following impediments: lack of legal representation, lack of funds, reading and writing difficulties, reported history as a slow learner, and an asserted inability to identify jurisdictional error. The appellant submits that the Court did not facilitate him obtaining pro bono assistance and that the primary judge’s reasons do not indicate that court practices and procedures were explained or his understanding tested.

21    It may be accepted that an unrepresented litigant could not necessarily be expected to understand or employ the expression “jurisdictional error”. That does not establish that the hearing was unfair. The appellant’s originating application alleged that the Tribunal had failed properly to consider the evidence concerning his mother and the evidence of his witnesses. The primary judge identified, considered and determined that complaint.

22    It may also be accepted that the primary judge was required to take reasonable steps to ensure that the appellant had a fair opportunity to present his case and to make informed procedural choices. That obligation may require explanation of practice and procedure sufficient to permit effective participation. However, it does not require the Court to provide legal advice, formulate grounds of challenge, identify evidence to be led, or otherwise assume responsibility for the conduct of the litigant’s case. The touchstone is fairness. The relevant context here is that the Court had made facilitative orders to permit the appellant to file evidence and submissions. The appellant had not availed himself of that opportunity and there is no evidence to suggest that he did not understand the timetabling orders or that he needed more time to put on additional materials.

23    A further difficulty for the appellant on this issue is evidentiary. No transcript of the hearing before the primary judge was placed before this Court. The available record establishes that he was unrepresented and in immigration detention; that directions permitted him to amend his application and file evidence and submissions; that he did not do so; and that he made brief oral submissions. It does not establish what explanation the primary judge gave concerning the nature of judicial review, the possibility of applications to amend, or for further time or any other procedural option: Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; 270 FCR 335 at [107], [109] and [111] (Murphy and Rangiah JJ). The appellant’s reliance on the fact that the primary judge’s reasons do not positively include a statement as to such an explanation being given is misplaced. That the primary judge did not record that such an explanation was given does not establish that it was not.

24    It was for the appellant to establish the factual premise of the alleged denial of procedural fairness. Even if it were to be accepted that notwithstanding the facilitative timetabling orders that were made, the primary judge was obliged to provide explanations in the nature of those for which the appellant contends, in the absence of the transcript, the appellant has not made out the factual premise necessary to support the allegation of denial of procedural unfairness.

25    There is a further difficulty. The appellant has not identified any ground, submission, evidence or procedural application that he would have advanced had the explanations for which he contends been given. The complaint that the Tribunal failed properly to consider the evidence concerning his mother and witnesses was identified and determined by the primary judge. The appellant has therefore not demonstrated that any asserted procedural omission deprived him of a reasonable opportunity to present an identified aspect of his case.

ISSUE 3: MOTHER’S ILLNESS AND ALLEGED LEGAL UNREASONABLENESS

26    As argued, the substance of the appellant’s argument on this issue was to the effect that the primary judge erred in rejecting the appellant’s contention that the Tribunal failed to give genuine and realistic consideration to the consequences of the appellant’s removal from Australia for the appellant and his immediate family, particularly his seriously ill mother.

27    The appellant accepts that the Tribunal considered the evidence concerning his mother’s illness. He submits, however, that the Tribunal failed to appreciate the gravity of her condition and the hardship his removal would cause him and his family, with the result that its decision was legally unreasonable.

28    The Minister points to detailed passages in the Tribunal reasons: T[53]-[55] concerning the appellant’s mother; T[58]-[60] concerning negative impacts and permanent separation; T[62] giving heavy weight to ties; and T[99] performing the ultimate balance. The Minister submits the complaint is in substance about weight, which was for the Tribunal, citing Vo v Minister for Home Affairs [2019] FCAFC 108; 269 FCR 566 at [43] (Derrington, Banks-Smith and Colvin JJ).

29    In oral submissions, the Minister also relied upon “Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA”, and in particular para 8.1. That paragraph provides that the protection of the Australian community is the Australian Government’s highest priority and requires decision-makers to consider the nature and seriousness of the non-citizen’s conduct to date, together with the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The Tribunal weighed the relevant considerations in the manner required by Direction No 110.

30    We accept the Minister’s submission. The Tribunal expressly considered the evidence concerning the appellant’s mother, the effect of permanent separation and the broader impact of removal on his family. It treated the appellant’s ties to Australia, including the circumstances of his mother and the effect of separation upon his family, as weighing heavily in favour of revocation before undertaking the ultimate balance at T[99]. The primary judge referred to that reasoning and correctly rejected the contention that the evidence had been overlooked.

31    Recasting the complaint as legal unreasonableness does not identify error in the primary judge’s conclusion. The appellant has not demonstrated that the Tribunal’s evaluation was outside the bounds of lawful decision-making. His submission invites the Court to attribute greater weight to family hardship and less weight to community protection. That is an invitation to undertake merits review.

ISSUE 4: REHABILITATION/COUNSELLING FINDING AND LEAVE

32    The fourth issue that the appellant seeks to raise is to the effect that the orders of the primary judge should be set aside because the Tribunal’s assessment of the appellant’s risk of reoffending was affected by error. As we followed the appellant’s argument, the appellant contends that the Tribunal erred at T[46] in finding that he had not arranged appointments with medical professionals or counsellors to assist with his mental health and rehabilitation. He submits that the finding affected the Tribunal’s assessment of the risk that he would return to substance use and reoffend.

33    The appellant’s position on this issue was somewhat in flux at the hearing of the appeal. The appellant initially appeared to abandon this issue but ultimately pressed the argument relating to this issue on the basis that it came within the ambulatory scope of review ground 3. The Minister opposes leave on the basis that it is a new ground not pressed before the primary judge but in any event has addressed the substance of the appellant’s argument on its merits. In short, the Minister submits that the appellant has not demonstrated factual error and likewise, has not demonstrated materiality if the alleged error be one that bore upon the exercise of the Tribunal’s jurisdiction. Assuming in the appellant’s favour that the contention may be advanced, it fails for the following reasons.

34    The material upon which the appellant relies does not establish that, by the time of the Tribunal’s decision, he had arranged appointments with a medical professional or counsellor moving forward with a view to being released into the community. The material only establishes that the appellant had, in the past, received support for his mental health and participated in rehabilitation programs. The psychological evidence addressed the importance in the context of re-entry into the community of continuity of rehabilitation and care, stated that his risk would be relatively low if he maintained prosocial support and coping strategies, and recommended psychological intervention. The evidence of his participation in rehabilitation programs was also relevant to his progress. To the extent that the material records the appellant’s past participation in opioid treatment or other rehabilitation programs, it does not establish that he had arranged medical or counselling assistance directed to his mental health or with a view to being released into the community. That is the context provided by the Tribunal’s reasons at T[42]-[48] which supports the Tribunal’s conclusion at T[46]. Neither category of evidence contradicts the narrower finding at T[46] that appointments for future medical or counselling assistance had not been arranged.

35    Further, the appellant has not demonstrated that the alleged factual error was material or why it was jurisdictional. The finding at T[46] formed only part of the Tribunal’s assessment at T[42]-[48] of the risk that the appellant would return to drug use and reoffend. At T[48], the Tribunal expressly approached its assessment on the basis that, even if the appellant presented only a relatively low risk of reoffending, that risk remained real given the violent nature of his offending. In its ultimate balance at T[99], the Tribunal weighed that risk together with the nature and seriousness of the potential harm against the considerations favouring revocation. In that context, the appellant has not demonstrated a realistic possibility that correction of the asserted error at T[46] could have produced a different decision.

CONCLUSION

36    For those reasons, none of the contentions advanced on appeal has been established. It follows that the appeal will be dismissed with costs.

Associate:

Dated:    24 August 2026