Federal Court of Australia

AJS23 v Minister for Immigration and Citizenship [2026] FCA 885

ORDERS

THE COURT ORDERS THAT:

1.    The Orders of the Federal Circuit and Family Court of Australia (Division 2) of 18 February 2025 in BRG71/2023 be quashed.

2.    The Federal Circuit and Family Court of Australia (Division 2), differently constituted, hear and determine the applicant’s application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time according to law.

3.    The first respondent pay the applicant’s costs, both in the Federal Court and in the Federal Circuit and Family Court of Australia (Division 2), such costs to be taxed unless otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an Originating application for relief under s 39B of the Judiciary Act 1903 (Cth) in which the applicant seeks the following relief:

(1)     Order number 3 and the costs order (in the first respondent’s favour) made by the Federal Circuit and Family Court of Australia (Division 2) on 18 February 2025 be quashed.

(2)    The Federal Circuit and Family Court of Australia (Division 2), differently constituted, hear and determine the applicant’s application under s. 477(2) of the Migration Act 1958 (Cth) for an extension of time according to law.

(3)    The first respondent pay the applicant’s costs of the originating application proceeding and the applicant’s costs in the Federal Circuit and Family Court of Australia (Division 2) thrown away as a result of Orders 1 and 2 above. Such costs are to be taxed unless agreed upon.

2    It is not in dispute that the references to Orders made by the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) on 18 February 2025 above are references to the Orders accompanying the published reasons of AJS23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 182 (FCFCOA Judgment) delivered by the FCFCOA on that day.

3    In an Amended Concise Statement lodged on 18 November 2025 the applicant particularised the following grounds of jurisdictional error in the FCFCOA Judgment:

1.     A constructive failure to exercise jurisdiction. The Circuit Court judge failed to respond, in his reasons for judgment, to important written submissions made by the applicant. The constructive failure is constituted by one or more of the particulars identified below.

Particulars

(a)     the submissions concerning whether the Report of the United Nations International Commission of Human Rights Experts on Ethiopia dated 19 September 2022 (ICR) contained relevant information: paragraphs 23 to 34 , 40A to 40I, 61 and 73 to 78 of the applicant's further set of updated consolidated submissions filed on 11 December 2024 in the Federal Circuit and Family Court of Australia (the applicant's further set of updated consolidated submissions);

(b)     the submissions concerning whether the ICR was sufficiently important to require the Administrative Appeals Tribunal to consider it: paragraph 43 of the applicant's further set of updated consolidated submissions;

(c)     the submissions concerning materiality: paragraphs 41,42,45 and 85 to 92 of the applicant's further set of updated consolidated submissions.

2.    A denial of natural justice by the Circuit Court judge failing to respond, in his reasons for judgment, to important written submissions made by the applicant. The denial of natural justice is constituted by one or more of the particulars identified in 1 above.

2A.    The Circuit Court judge fundamentally misunderstood the basis of the applicant’s further amended application filed on 25 November 2024 in the Federal Circuit and Family Court of Australia.

(a)    failing to deal with grounds 1 and 2 as distinct grounds of review;

(b)    misunderstanding the distinctiveness of ground 2; or

(c)    overlooking the distinctiveness of ground 2.

3.    The Circuit Court judge’s finding that the applicant’s grounds of review were without merit is unreasonable. That finding was plainly unjust. The two grounds (contained in the applicant’s further amended application filed on 25 November 2024 in the Federal Circuit and Family Court of Australia) had merit.

4    I understand that, before me, the applicant pressed grounds 1, 2 and 2A. No submissions were made by either party addressing ground 3.

PRIMARY DECISION

5    In the Further Amended Application – Migration Act before the primary Judge (which was subsequently lodged on 25 November 2024), the applicant sought, inter alia, review of a decision of the (then) Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the applicant. The grounds of review on which the applicant relied before the primary Judge were as follows:

1.     Failing to form the state of satisfaction (one way or the other) required by s.36(2)(a) and (aa) of the Migration Act 1958.

Particulars

Failing to take into account (and evaluate) the most recent material available to it being the Report of the United Nations International Commission of Human Rights Experts on Ethiopia dated 19 September 2022 (court book pages 211-229).

2.     Denial of procedural fairness.

Particulars

Failure to consider the Report of the United Nations International Commission of Human Rights Experts on Ethiopia dated 19 September 2022 (court book pages 211-229).

6    Before the primary Judge the applicant also sought an extension of time for the filing of an application under s 477(2) of the Migration Act 1958 (Cth).

7    The primary Judge summarised relevant background to the proceedings as follows:

2.     The applicant was a citizen of Ethiopia who applied for a protection visa under s. 65 of the Migration Act (1958) (Cth) (“the Act”).

3.     On 13 September 2019, a delegate of the Minister refused to grant the visa application.

4.     On 10 October 2019, the Applicant sought review of the delegate’s decision by the Tribunal.

5.     The hearing before the Tribunal took place on 20 October 2022. The applicant’s claims before the Tribunal were as follows:

•    He is from the Oromo ethic group.

•    That currently he faces many problems in his country and the problems are widespread affecting all areas of the Oromo region.

•    He was a supporter of the former political party and refused to accept a request to support the ruling party and that is why he cannot live in his country peacefully.

•    The Oromo people are the largest ethnic group in Ethiopia and have been oppressed by consecutive Ethiopian regimes for over the last century and they are protesting against the Addis Ababa integrated development masterplan.

•    In 2004 his daughter was arrested, and he later travelled to Egypt and then to Australia.

•    He got a chance to visit three countries, but he did not wish to seek asylum at any of them because the Ethiopian situation was not as aggravated then, as it is now, when the time of his application.

•    After receiving his Australian visa, he was on 26 July 2016 taken from his home to prison where he spent seven days in a difficult situation due to his Oromo ethnic background and the suspicions of government that he was an initiator of insurgency. On 1 September 2016 the government released him by accepting a bail payment which was the equivalent of $125 Australian.

6.     On 31 October 2022, the Tribunal affirmed the decision of the delegate.

7.     The applicant filed an Originating Application for Review of the decision of the Tribunal on 14 February 2023. The application was filed 71 days out of time, and accordingly, the applicant sought an extension of time for the filing of the application under s. 477(2) of the Act.

8.     Factors which are considered on an extension of time application include the extent of the delay, an explanation of the reasons for delay, the interests of the public, as well as the merits of the substantive application.

9.     It has been held that a Court hearing an application for extension of time should not readily disturb what has been provided for as a time limit in relevant legislation.

10.     In the present matter, it was submitted on behalf of the first respondent that the Minister did not press any specific prejudice by the 71 day delay. Rather, the first respondent submitted that the application for extension of time should be refused because the substantive grounds for review lacked merit.

(footnotes omitted)

8    The primary Judge noted that the grounds of review in particular concerned a “Report of the United Nations International Commission of Human Rights Experts on Ethiopia” dated 19 September 2022 (ICR). His Honour continued:

12.    The grounds of review as set out in the Further Amended Application for Review were as follows:

•    Failing to form the state of satisfaction (one way or the other) required by s.36(2)(a) and (aa) of the Migration Act 1958.

Particulars

Failing to take into account (and evaluate) the most recent material available to it being the Report of the United Nations International Commission of Human Rights Experts on Ethiopia dated 19 September 2022 (court book pages 211-229).

•    Denial of procedural fairness.

Particulars

Failure to consider the Report of the United Nations International Commission of Human Rights Experts on Ethiopia dated 19 September 2022 (court book pages 211-229).

9    At [13] the primary Judge noted that on 21 November 2024 the Court ordered the filing of further submissions. It was noted that the following Orders were made by the Court:

4.    The parties provide a set of updated consolidated written submissions on the question as to whether the report of the United Nations International Commission of Human Rights Experts on Ethiopia dated 9 September 2022, as reproduced in Exhibit 1, was relevantly a country information report which fell into the category of “ ... the most recent country information before the Tribunal ...”, in circumstances where, at [15] of such report, when the Court was considering that the applicant’s home area within Ethiopia was geographically referred to as “Oromia”, the report provided:

“15. The Commission’s time and resource constraints obliged it to select a specific and manageable group of incidents and themes for which it could complete investigations in two months with limited resources. Although its selection reflects some of the most significant violations of international human rights and humanitarian law, while illustrating broader patterns, it does not allow the Commission to present a comprehensive picture. Although its mandate authorizes it to investigate incidents throughout the territory of Ethiopia, the Commission confined its investigations for this report to the hostilities in Tigray and Amhara regions. It acknowledges that its selection will frustrate many, especially in light of the broad and troubling range of allegations of violations in Ethiopia since 3 November 2020. The Commission hopes that it will have the opportunity to expand its investigations and findings with additional time, resources, and cooperation to include further incidents and themes, such as those set forth in section VII.”

, the Court noting that areas for further investigation in section VII of the report related to specific geographical areas within Ethiopia which included Oromia.

5.     The applicant have leave to file and serve a set of updated consolidated written submissions on or before 4.00pm on 27 November 2024.

6.     The first respondent have leave to file and serve a set of updated consolidated written submissions on or before 4.00pm on 3 December 2024.

7.     The applicant have a right of reply by way of providing a further set of updated consolidated written submissions on or before 4.00pm on 6 December 2024.

10    At [15] the primary Judge observed:

15.    Each ground of review is based upon an assertion that the Tribunal either failed to take into account and evaluate, or failed to consider, what was submitted to be the most recent country information report of relevance relating to Ethiopia – namely a report dated 19 September 2022 which was a Report of the United Nations International Commission of Human Rights Experts on Ethiopia (“the ICR report”).

11    His Honour then discussed the decision of the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431, and continued:

18.    Inherent in any requirement to consider the most recent information available is the necessity that such information be relevant to questions in issue. The Court’s requirement for the provision of updated consolidated submissions, as set out in Order 4 of the Orders of the Court published on 22 November 2024, arose because on the face of the ICR report, at [15], it was recorded that those responsible for the preparation of the ICR report confined their investigations to alleged hostilities in regions other than the applicant’s own region of Oromia, namely the regions of Tigray and Amhara.

19.    Though the ICR report made passing reference to the requirement for an investigation to be conducted at some future time into reported killings in the Oromia region, the report understandably made no findings in relation to such allegations.

20.    The Court accepts the submission made on behalf of the first respondent that the ICR Report was irrelevant to the issues required to be determined by the Tribunal, and that even if the Tribunal had failed to consider the ICR report, any such failure was immaterial, and therefore not jurisdictional in nature.

(footnotes omitted)

12    Accordingly, the primary Judge found that the applicant had failed to establish jurisdictional error on the part of the Tribunal. His Honour concluded:

25.    The substantive grounds of review are without merit, and accordingly, the application for extension of time for the commencement of the proceeding is dismissed.

13    His Honour ordered as follows:

1.    The Further Amended Application for Review filed on 25 November 2024 be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the Further Amended Application for Review fixed in the amount of $4,189.

SUBMISSIONS OF THE APPLICANT

Ground 1(a)

14    The applicant submitted that for the primary Judge to comply, jurisdictionally, with his judicial task, he needed to respond to and grapple with the applicant’s submissions filed 11 December 2024 in the Court below at paragraphs 40A to 40I. These submissions were:

Question posed by the Court during the hearing on 21 November 2024 (paragraph 4 of the Court Order dated 22 November 2024)

40A.    The applicant’s submissions in response to the above question are contained in paragraphs 40B to 40I below.

40B.     The applicant had thought during the hearing that the Court’s question was directed to ‘materiality’. On reflection, it appears directed more to the anterior question of whether the ICR is the most recent country information and therefore within the Peko-Wallsend principle as described in the authorities cited in footnote number 24 above.

40C.     Country information concerns information about a country. The Peko-Wallsend principle does not define or qualify what types of country information could be relevant to a particular claim. The information does not have to be confined to investigations, assessments or findings following an investigation.

40D.     The information may contain allegations of or reports of ethnic violence in a country region specific to the applicant. The document containing that information might also contain information about investigations concerning country regions outside those of the applicant’s home area. The presence of the latter type of information does not mean that the first type of information is not relevant country information for the purposes of determining the applicant’s claim under sections 36(2)(a) or (aa) of the Migration Act 1958.

40E.     The Peko-Wallsend principle does not require the most recent country information to be comprehensive. The evaluation of the most recent country information is a matter for the AAT to undertake as part of its statutory task.

40F.     The Peko-Wallsend principle does not require that the country information be from a particular source or contained within a particular document e.g. a report.

40G.     The AAT expressly referred to country information (other than the DFAT Country Information) that pertained to Tigray, other regions (which could have included Oromia) and Oromia. Nothing in paragraphs 25 or 26 of the Decision records that the country information set out was based on investigations or that it was comprehensive.

40H.     In addition to paragraphs 23 to 34 above, the ICR is country information relevant to ethnic violence in Oromia because:

(a)     the ICR has gravitas. It was a report commissioned by the United Nations Human Rights Council. The three human rights experts came from Kenya, the United States of America and Sri Lanka;

(b)     the summary on the first page of the ICR relates to Ethiopia and not just to Tigray or Amhara;

(c)     the Commission’s mandate was to conduct investigations throughout Ethiopia. The information contained in the ICR, other than the investigations in Tigray and Amhara, would have come to the attention of the Commission whilst it was carrying out its mandate;

(d)     the Commission invited submissions from the public through its UN webpage, which detailed its terms of reference. The Commission engaged in consultations which included a mission to Addis Ababa from 24 to 30 July 2022. Addis Ababa is within the Oromia region (court book page 176, at two-thirds down the page);

(e)     of the ICR at [23]-[24];

(f)     the heading to section VII of the ICR contains the word meriting;

(g)     in the ICR at [100] the Commission said that it had identified several incidents and themes that merit further investigation (emphasis added);

(h)     the heading above [103] is ‘B. Large-scale killings in Oromia’;

(i)     paragraphs [103] and [104] record reports of three large-scale killings in Oromia occurring from June through August 2022. The first two large-scale killings are recorded in [103] and the third in [104]. The reports of the three large-scale killings are based on ‘reliable information’ – see the beginning of [103]. It is unlikely the Commission would have used that phrase lightly when one bears in mind what the Commission said at [14], [16] and [17];

(j)     in the last sentence of [104] the Commission recommends further investigation into the three incidents as well as the wider situation of communities in Oromia.

40I.     The ICR contains the most recent country information concerning ethnic violence in Ethiopia including the Oromia region. The third incident recorded in [104] of the ICR occurred in late August 2022. The ICR is dated 19 September 2022, which is the month before the AAT hearing.

(footnotes omitted, emphasis in original)

15    Paragraphs 103 and 104 of the ICR provided:

B. Large-scale killings in Oromia

103.    Reliable information reports three large-scale killings in Oromia occurring from June through August 2022. In the first incident, the Oromo Liberation Army (OLA) appears to have attacked several towns and villages in West Wollega zone on 18 June 2022, killing hundreds of people of mainly Amhara ethnicity. Homes and businesses were allegedly burned to the ground and livestock and other property looted. The OLA also seems to have attacked villages in Lemlem Kebele in Qelem Wollega Zone on 4 July 2022, killing more than 100 mostly ethnic Amhara civilians and injuring dozens of others.

104.     While finalizing this report, the Commission learned of a third incident, in which dozens of ethnic Oromo appear to have been killed in western Oromia in late August 2022. It also received reports of attacks against Oromo civilians by numerous perpetrators, including ENDF, Amhara militias, and Oromia Special Forces. Further investigation into these incidents, as well as the wider situation of communities in Oromia is recommended.

16    The applicant continued in summary that:

    the primary Judge did not respond to the applicant’s submission that the reports recorded in the ICR at [103] and [104] were relevant country information because those reports were based upon ‘reliable information’;

    the primary Judge did not deal with those paragraphs in the ICR; and

    the recency of the report in the ICR at [104] was specifically noted by the applicant. The primary Judge did not deal with why or why not the recency of that report might not impact upon whether that report was relevant country information.

Ground 1(b)

17    The applicant submitted that Ground 1(b) could also be characterised as the primary Judge overlooking or misunderstanding the procedural fairness ground, but in any event the primary Judge did not deal with paragraph 43 of the applicant’s submissions below. Paragraphs 43-45 of the applicant’s submissions were as follows:

Second jurisdictional error: denial of procedural fairness

43.     Procedural fairness required the AAT to consider the ICR. As demonstrated above in paragraphs 23 to 34, the ICR was sufficiently important to require the AAT to consider it.

44.     There is nothing in the Decision to indicate that the AAT properly understood and engaged with the ICR. Its failure to do so was a jurisdictional error.

Materiality

45.     Materiality is demonstrated because the AAT completely failed to consider the ICR. It would be mere speculation to say that the Decision would inevitably be the same had the AAT properly understood the significance of the ICR and turned its mind to consider it.

(footnotes omitted)

18    In particular, the applicant submitted that:

    before the primary Judge the applicant had directed his Honour’s attention to the fact that the country information extracted in the decision of the Tribunal went only up until 2021; and

    the primary Judge did not mention procedural fairness, or the applicant’s submission below as to the importance of the ICR, or indeed paragraphs 23, 25, 26, 27, 31, 33 and 34 of the ICR which were referenced by the applicant in submissions below.

Ground 1(c)

19    In respect of Ground 1(c) the applicant submitted in writing that:

37.     The applicant presses this ground in respect of paragraph 45 of the Applicant’s Circuit Court Submissions. the Circuit Court judge failed to respond to that paragraph in the Applicant’s Circuit Court Submissions.

38.     This ground flows from and is linked to ground 1(b).

39.     The Tribunal, other than noting the ICR in its reasons, completely failed to consider the ICR in any way.

Ground 2

20    In respect of Ground 2 the applicant submitted in summary that:

    the question posed by the November 2024 Order was to prove fatal the applicant’s case. Natural justice required the primary Judge to comprehensively address the applicant’s written submissions responsive to the November 2024 Order; and

    the primary Judge did not comprehensively consider the submissions of the applicant in this respect.

Extension of time

21    In reply written submissions, the applicant, in response to the Minister’s submission that the primary Judge could examine the merits of the applicant’s grounds for review, submitted that:

    it was appropriate for the primary Judge to consider the merits of the applicant’s grounds for review at a reasonably impressionistic level; and

    the merits of the applicant’s grounds for review were not considered at a reasonably impressionistic level. The primary Judge found that the applicant had failed to establish jurisdictional error on the part of the Tribunal and that his substantive grounds of review were without merit because the ICR was irrelevant to the issues required to be determined by the Tribunal.

SUBMISSIONS OF THE FIRST RESPONDENT

22    In summary the first respondent submitted:

    A claim that “proper” consideration was not given to whether a particular ground had merit does not necessarily articulate jurisdictional error: CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at [19].

    It is possible for jurisdictional error to arise from a failure to respond to a substantial, clearly articulated argument (such as a failure to provide procedural fairness, or a constructive failure to exercise jurisdiction). However, that the FCFCOA misunderstood the nature of the review grounds or their merit is unlikely to amount jurisdictional error, as was stated in CZA19 at [34].

    A failure to give adequate reasons is not likely to constitute a failure to exercise jurisdiction (unless it reveals some other type of jurisdictional error).

Ground 1(a)

23    In respect of Ground 1(a), the respondent submitted in summary:

    The primary Judge did consider and deal with the applicant’s submissions (or, alternatively, it should not be found on the balance of probabilities that the primary Judge failed to consider the submissions).

    The thrust of the applicant’s submissions to the primary Judge had been that the Tribunal had failed to consider the most recent country information (as per the ICR), which was a failure to form the required state of satisfaction under the Migration Act or a denial of procedural fairness.

    However a finding that a decision-maker has not engaged in an active intellectual process will not be lightly made and must be supported by clear evidence. The primary Judge referred to the parties’ submissions subsequently received, which supports an inference that the primary Judge had read and was mindful of the parties’ submissions.

    The primary Judge had obviously read the ICR, given that his Honour specifically referred to ICR [15], [100], [103] and [104] (including in footnote 4 within the FCFCOA Judgment [19])).

    The primary Judge accepted the first respondent’s submission that the ICR was irrelevant and “on materiality” (FCFCOA Judgment [20]). This must have flowed from engagement with submissions (particularly the first respondent’s submissions). Such submissions of the first respondent engaged with the content of the ICR, including:

•    the confinement of investigations in Tigray and Amhara (not Oromia);

•    that ICR [23]-[24] concerned background information about hate speech and political unrest; and

•    that the only potentially relevant aspect of the ICR of substance concerned apparent large scale killings in Oromia that required further investigation and did not contain findings (among other things)

    The first respondent’s submissions in the Court below expressly referred to the ICR at [5], [23]-[24] [103]-[104], [110] and a summary of the ICR’s contents. This also shows that the primary Judge had engaged with the content of the ICR.

    The central focus of the FCFCOA Judgment was whether the ICR constituted relevant country information about Ethiopia in the context of the applicant’s claims. Many of the submissions relied on by the applicant essentially described the content of the ICR rather than making a clear submission that general findings about Ethiopia made the ICR relevant.

    Even if the primary Judge did overlook specific submissions of the applicant, such an error was within jurisdiction and did not give rise to jurisdictional error.

    Jurisdictional error should not be found merely because the FCFCOA may not have expressly referred to specific contentions in submissions (particularly at the level of granularity that the applicant is submitting is necessary, such as dealing with the “gravitas” of the ICR). The FCFCOA was not required to give a line-by-line refutation of points made in the applicant’s submissions.

    Overall it seems that the applicant disagrees with the primary Judge’s conclusion as to relevance, however that does not give rise to jurisdictional error.

Ground 1(b)

24    In respect of Ground 1(b), the first respondent submitted that the applicant’s complaint should fail because the primary Judge dealt with the ground of denial of procedural fairness. This is because, in summary:

    the primary Judge expressly referred to this ground;

    the primary Judge referred to the applicant’s submission that the Tribunal failed to consider the ICR;

    the primary Judge concluded that the ICR was irrelevant; and

    at most the error of the primary Judge would only be an error in the adequacy of reasons rather than a jurisdictional error.

Ground 1(c)

25    The first respondent submitted that the primary Judge dealt with materiality of the error, for example at FCFCOA Judgment [20], [22] and [23], and that it should not be inferred that the FCFCOA failed to consider the applicant’s submissions or that such a failure would be material.

Ground 2

26    In summary, the first respondent submitted that this ground should fail for the reasons set out in respect of Ground 1(a), namely that:

    the primary Judge considered the contentions and adequately articulated its reasoning; or alternatively

    the primary Judge did not fall into jurisdictional error, even if there was some failure to consider submissions or articulate reasoning.

CONSIDERATION

27    The primary Judge recognised at [7]-[10] of his reasons that, because the originating application for review was filed by the applicant 71 days out of time, it was incumbent on the applicant to seek an extension of time for the filing of the application under s 477(2) of the Migration Act.

28    Principles relevant to the exercise of discretion of a Judge to extend time under s 477A of the Migration Act – and equally, in my view, s 477 of the Migration Act – were discussed by the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579. There, Kiefel CJ, Gageler, Keane and Gleeson JJ observed:

17.    … it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level". That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.

18.    However, and as the plaintiff accepted, 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.

19.    It follows that the Full Court in DHX17 was wrong to say that "the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review". As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken.

(footnotes omitted, emphasis added)

29    In the present case the primary Judge plainly considered the merits of the case at more than an “impressionistic level”. It appears that his Honour’s approach followed the manner in which the parties presented their respective cases to the Court. A review of the file in the FCFCOA revealed that multiple sets of submissions were filed by each of the applicant and the first respondent, which is reflective of the parties’ detailed attention to the merits of the applicant’s case.

30    I note that this detailed attention to the merits of the applicant’s case flowed through to the submissions made to the Federal Court in the present judicial review application.

31    It follows that the key question arising in the present judicial review application is whether, in determining that an extension of time to the applicant to seek judicial review of the Tribunal’s decision should be refused because the applicant’s case lacked merit, the primary Judge had properly had regard to the applicant’s submissions that his case did have merit in spite of the manner in which the Tribunal dealt with the ICR. As I have already noted, the primary Judge took the view that the ICR was irrelevant to the applicant’s case before the Tribunal.

32    In substance the applicant’s case before me was that the ICR was relevant because it contained recent country information. The applicant essentially submitted that the decisions of the Tribunal and the primary Judge were wrong because the Tribunal had not taken the ICR into account, and the applicant’s arguments at paragraphs 40A to 40I of his written submissions below concerning the relevance of the ICR were not taken into consideration by the primary Judge.

33    The Minister’s case was that the primary Judge was correct in finding that the ICR was irrelevant, and in the alternative any error of the primary Judge in respect of the ICR was within jurisdiction.

34    On the face of the Tribunal’s decision, the ICR was possibly the most up to date country information available for the Tribunal’s consideration, having been released in the month prior to the Tribunal decision. The discussion of the ICR in the Tribunal decision was however limited to paragraph 23 of its decision, namely:

23.    Accompanying these letters was a letter of support from Mr Abede Dadi Tullu, of the Queensland Oromo Community Council (QOCC) in which he states that:

The Queensland Oromo community confirm that sources from Human Rights Watch, including Amnesty international that there is an appalling human rights abuses in Oromia.

Also included in this correspondence/submission was a letter of support from the primary applicant’s employer indicating that he performs his work as a taxi driver well; and a Report from the Human Rights Council of 19 September 2022 titled ‘Report of the International Commission of Human Rights Experts on Ethiopia’.

35    The primary Judge was plainly aware that the ICR was before the Tribunal, given that Order 4 of the Orders of the FCFCOA made on 21 November 2024 specifically invited the parties to put forward their contentions as to whether the ICR fell into the category of “the most recent country information before the Tribunal”. Order 4 further specifically noted paragraph 15 of the ICR, which in turn noted that the Commission had confined its investigations for the purposes of the report to hostilities in the Tigray and Amhara regions.

36    It was this specific statement of the Commission, as to the manner in which it had conducted its investigations, that substantially determined the primary Judge’s findings at [18]-[23] of the primary Judgment that the ICR lacked relevance.

37    However, as I noted earlier in this judgment, the Commission plainly had, and in the ICR specifically referred to, additional information relating to the applicant’s home area of Oromia. In particular the report stated:

B. Large-scale killings in Oromia

103.     Reliable information reports three large-scale killings in Oromia occurring from June through August 2022. In the first incident, the Oromo Liberation Army (OLA) appears to have attacked several towns and villages in West Wollega zone on 18 June 2022, killing hundreds of people of mainly Arnhara ethnicity. Homes and businesses were allegedly burned to the ground and livestock and other property looted. The OLA also seems to have attacked villages in Lemlem Kebele in Qelem Wollega Zone on 4 July 2022, killing more than 100 mostly ethnic Amhara civilians and injuring dozens of others.

104.     While finalizing this report, the Commission learned of a third incident, in which dozens of ethnic Orama appear to have been killed in western Oromia in late August 2022. It also received reports of attacks against Oromo civilians by numerous perpetrators, including ENDF, Amhara militias, and Oromia Special Forces. Further investigation into these incidents, as well as the wider situation of communities in Oromia is recommended.

38    The primary Judge did not address the submissions of the applicant referable to these statements in the ICR. His Honour also did not address the submission of the applicant that the ICR’s findings in respect of general and widespread violence in Ethiopia may have had relevance to the civil environment in Oromia notwithstanding that the Commission had not specifically conducted its investigations in that district.

39    In undertaking its task the Tribunal was obliged to, inter alia, have regard to evidence and material put before it by the applicant, including the most recent and accurate information available: Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [44]-[45]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [38], [74]-[77]; Rares J in SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938; (2008) 172 FCR 563 at [27] et seq; GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [77]; DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38; (2023) 296 FCR 204 at [86]. Failure on the part of the Tribunal to do so in any particular case of review of a decision to refuse to grant a protection visa constitutes a jurisdictional error.

40    In considering the merits of an application, pursuant to s 477(2) of the Migration Act, to extend the time for judicial review of the Tribunal’s decision, it was at least prima facie relevant to have regard to the findings of the ICR, in the circumstances of this case where the Tribunal had allegedly disregarded that report.

41    The applicant made detailed submissions to the primary Judge as to the relevance and application of the ICR findings. In spite of this, the primary Judge ruled that the ICR findings in their entirety were irrelevant by reference to a qualification at paragraph 15 of that report, such that the Tribunal had no obligation to have regard to it.

42    I am unable to identify, in the primary Judge’s reasons for refusing to extend time, any consideration of the applicant’s submissions to the contrary. This is notwithstanding that his Honour had invited those submissions on 21 November 2024.

CONCLUSION

43    In my view Grounds 1 and 2 of the present application are substantiated. In the circumstances it is unnecessary for me to consider Grounds 2A or 3.

44    I note that in his application before me the first order the applicant seeks is as follows:

(1)    Order number 3 and the costs order (in the first respondent’s favour) made by the Federal Circuit and Family Court of Australia (Division 2) on 18 February 2025 be quashed.

45    On a review of both the FCFCOA Judgment and FCFCOA file BRG71/2023, I am unable to identify any Order numbered “3” made by the primary Judge on 18 February 2025. I further note that no reference to such an Order was made during the hearing of the proceeding before me.

46    In the circumstances, I consider it appropriate to order that the Orders of the primary Judge of 18 February 2025 be quashed, and that the matter be remitted to the Federal Circuit and Family Court of Australia (Division 2) for reconsideration according to law. The first respondent is to pay the costs of the applicant, both in the Federal Circuit and Family Court of Australia (Division 2) and in this proceeding.

Associate:

Dated:    10 July 2026