Federal Court of Australia

Fetalaiga v Minister for Immigration and Citizenship [2026] FCA 1025

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s oral application for an adjournment of the hearing is dismissed.

2.    The application for judicial review is dismissed.

3.    The applicant must pay the first respondent’s costs of the proceeding, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Amosa Junior Fetalaiga, is a citizen of New Zealand. He came to Australia with his parents and three siblings in 1997, when he was 11 years old. He was granted a Class TY Subclass 444 Special Category visa in June 2004. Members of his immediate family have since obtained Australian citizenship, but Mr Fetalaiga has never become an Australian citizen.

2    On 13 September 2023, Mr Fetalaiga was convicted of 29 offences, the majority of which were counts of assault against his former partner, her son (his stepson), and their two daughters. He was sentenced to a term of imprisonment of seven years. While he was in prison, his visa was cancelled, as required by s 501(3A) of the Migration Act 1958 (Cth).

3    As required by s 501CA(3)(b), the first respondent (Minister) invited Mr Fetalaiga to make representations as to why the cancellation of the visa should be revoked. Mr Fetalaiga took up this invitation, but on 9 September 2025, a delegate of the Minister refused to revoke the cancellation.

4    Mr Fetalaiga sought review of the decision in the Administrative Review Tribunal, but on 1 December 2025 the Tribunal affirmed the delegate’s decision. Each of the delegate and the Tribunal was exercising the power of the Minister under s 501CA(4) to revoke the original decision to cancel if satisfied that Mr Fetalaiga passed the character test (not relevant here) or where ‘there is another reason why the original decision should be revoked’.

5    Mr Fetalaiga now seeks judicial review of the Tribunal’s decision in this Court. He did not have legal representation when he commenced the proceeding, and the grounds of review were generic and unparticularised. After commencing the proceeding, Mr Fetalaiga appointed solicitors to represent him and counsel accepted a referral from the Court to act on a pro bono basis. Both the solicitors and pro bono counsel subsequently withdrew. Mr Fetalaiga has not filed written submissions in support of his application.

6    For the following reasons, the application for judicial review will be dismissed, with costs.

Adjournment application

7    At the hearing, Mr Fetalaiga made an oral application for an adjournment to give him an opportunity to seek legal representation. The Minister opposed this. I dismissed the application at the hearing, saying that I would give reasons at the same time as giving reasons in the matter as a whole.

8    The principles that govern an application for an adjournment in order to obtain legal representation in the context of migration proceedings are summarised in WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2], as follows:

(1)    Lack of legal representation is not, of itself, a reason to adjourn the hearing of a long-scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19].

(2)    Other than in the case of persons appearing before a court for a serious criminal offence, there is no absolute ‘right’ to legal representation in this country, in the sense that a judge is required to adjourn the proceeding if the party has no lawyer: EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 at [18]; Jarrett v Westpac Banking Corporation [1999] FCA 425 at [6]; and Pallas v Minister for Home Affairs [2019] FCAFC 149 at [42(a)].

(3)    Nevertheless, the fact that a party wishes to obtain legal representation is a relevant factor in considering the question of whether an adjournment should be granted: BSY16 v Minister for Home Affairs [2019] FCA 140 at [5].

(4)    Matters that will be relevant in determining the weight to be given to that wish may include:

(a)    the amount of time the party has had to obtain legal representation;

(b)    the steps the party has taken to obtain such representation during that time;

(c)    the explanation for any delay in that respect;

(d)    the utility of any adjournment, including the likelihood of the appellant obtaining legal representation; and

(e)    the time required for the appellant to do so,

see BSY16 at [5]; and Pallas at [42].

(5)     In the end, the decision whether to adjourn is a discretionary decision for the court hearing the matter, which must be exercised judicially and will depend on the individual circumstances that are relevant: EPH17 at [18]-[19]; Jarrett at [78].

9    The application for judicial review was filed on 17 December 2025. By 13 February 2026, the Court had secured Mr Fetalaiga pro bono assistance. However on 10 June 2026, a registrar of the Court determined that those practitioners had complied with the requirements of r 4.16 of the Federal Court Rules 2011 (Cth) as to when a pro bono lawyer may obtain permission to cease to provide legal assistance to a party, so they ceased to act for Mr Fetalaiga the following day.

10    After multiple requests in correspondence with Court staff to adjourn the hearing, on 9 July 2026, Mr Fetalaiga attempted to file an adjournment application together with an affidavit. The application and affidavit were contained in a single document, which was incomplete and not in a suitable form to be accepted for filing. Mr Fetalaiga was advised that any application for an adjournment would need to be made at the commencement of the final hearing of the application for judicial review. By this time, the hearing had been listed for 28 July 2026. Mr Fetalaiga was advised that if his adjournment application was unsuccessful, the hearing would proceed on that day.

11    While the document lodged on 9 July was not accepted for filing, I received it into evidence at the hearing and took it into account in the course of considering Mr Fetalaiga’s adjournment application. To the extent that it provides any reasons for the adjournment, it simply says (in a letter from Mr Fetalaiga) that his previous legal representatives had ‘dropped his case’, that he is not able to represent himself in the Federal Court, and that he was searching for new counsel and was seeking advice. No detail of his efforts is given.

12    At the hearing, Mr Fetalaiga also relied on a letter from the clinical counsellor supporting him during his immigration detention, Kirston Butcher. Ms Butcher’s letter expresses her ‘professional opinion that it would be in the interests of procedural fairness for [Mr Fetalaiga] to be afforded a reasonable opportunity to secure new legal representation’. With respect, procedural fairness is not a subject on which a clinical counsellor is qualified to provide an expert opinion. Ms Butcher’s views in this regard are not relevant.

13    Consistently with the principles summarised in WZAVK, a lack of legal representation does not by itself mean that a person has not received procedural fairness: see also AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 at [51]-[52] (Flick, Griffiths and Perry JJ). Mr Fetalaiga commenced this proceeding late last year. Even if it is accepted that the withdrawal of his pro bono lawyers on 11 June 2026 placed the burden of presenting his case on him for the first time, the hearing date of 28 July 2026 had been notified to the parties by then. Mr Fetalaiga had more than six weeks to prepare, and he had been informed on more than one occasion that the hearing would proceed if he was not successful in his adjournment application.

14    Orders made by the Court required Mr Fetalaiga to file material including an outline of written submissions 35 days before the hearing, but he did not do so. The Minister filed an outline of written submissions on 15 July 2026. The orders contemplated that Mr Fetalaiga could file submissions in reply seven days before the hearing date, but he did not do that either. He has not sought any extension of these deadlines to permit him to file written submissions later if necessary.

15    I appreciate that without legal representation, Mr Fetalaiga was likely to find it difficult to present his case. He confirmed this in his oral submissions. But the opportunity to be heard on the application he commenced has been provided to him. As detailed below, I tried to elicit a case from Mr Fetalaiga orally at the hearing.

16    Ms Butcher’s letter did also provide some detail of her efforts to obtain legal representation on Mr Fetalaiga’s behalf. She contacted an immigration practitioner who said she could not act ‘due to the short timeframe and the nature of her practice’. The practitioner referred Ms Butcher to the Refugee and Immigration Legal Service (RAILS) but Ms Butcher had been unable to reach them. Mr Fetalaiga added from the bar table that Ms Butcher had introduced him to a lawyer from RAILS, who according to Mr Fetalaiga said that he was ‘busy at the moment and if he has time to take my case, and that way we can adjourn it to give me time to sort my case through’. He later said he was ‘waiting’ for a lawyer to take his case. In reply submissions he said that ‘I would rather just wait for this new lawyer to come up and see where we go from there’ and ‘I am waiting for the lawyer to see when they are going to – to see when he is going to accept my case, that is what I mean.’

17    None of this gave me any confidence that Mr Fetalaiga would be able to obtain legal representation even if the hearing were to be adjourned, and there was no indication at all of how long that would take, even assuming that it was going to happen at some point. It did not appear that the unnamed lawyer had reviewed Mr Fetalaiga’s matter and expressed any actual willingness to take it on or to present any arguable case.

18    Other than Ms Butcher’s unsuccessful attempts, no detail of any steps taken has been given. In all the circumstances, I considered that if Mr Fetalaiga was going to be able to obtain alternative legal representation, he would have done so by now. But he has not.

19    I considered that any adjournment was unlikely to be improve Mr Fetalaiga’s position in respect of legal representation. That is why I did not adjourn the matter at the hearing.

The application for judicial review

20    The grounds of judicial review stated in the originating application are:

1.     There was a constructive a failure to exercise jurisdiction

2.     [include particulars of fraud or bad faith, if alleged - rule 31.22(2)]

3.    The Tribunal had regard to an irrelevant consideration

4.     The Tribunal failed to give proper genuine and realistic consideration to the merits of the applicants case

21    Mr Fetalaiga seeks a writ of certiorari quashing the Tribunal’s decision and a writ of mandamus requiring it to determine the application for review according to law. In order to obtain that relief, it is necessary for jurisdictional error to be established. At the hearing I sought to explore with Mr Fetalaiga whether there was anything specific he wanted to say in support of these grounds. I went through the grounds with him one by one, but he was unable to add anything to them. I also asked him whether there was anything else he wanted to say to me about his case, but he simply repeated that he was unprepared.

22    The ‘ground’ numbered 2 above can obviously be disregarded. Setting that aside, I will consider each of the grounds in turn.

Constructive failure to exercise jurisdiction

23    Various different kinds of possible jurisdictional errors have been characterised as a constructive failure to exercise jurisdiction, for example:

(a)    making a decision where the decision-maker has failed to inquire about a relevant or critical fact or matter (Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 280 CLR 265 at [25] applying Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]);

(b)    ‘when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form’ (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [41] and see also Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] concerning failure to identify the statutory power that is exercised); and

(c)    failing to deal with a substantial claim that is clearly articulated or arises clearly on the materials (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24]-[25], applied following Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 in the s 501CA context in Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 173; (2023) 300 FCR 67 at [63]-[68]).

24    I have read the Tribunal’s decision. I do not see in it any reason to think that the Tribunal has failed to make inquiry about any critical fact or matter. Nor is there any suggestion in the reasons that the Tribunal misunderstood the nature of its jurisdiction or failed to apply itself to the real question before it. The Tribunal described the nature of the statutory power accurately by reference to the High Court’s decision in Plaintiff M1/2021.

25    As for failing to deal with a substantial claim, in his form requesting revocation of the cancellation decision, Mr Fetalaiga gave the following reasons for revocation:

•    I lived in Australia since (1997).

•    I have (2) children born in Australia.

•    I have a lot of family in Australia.

•    I have a lot of family support.

•    I have employment upon release.

•    I attended primary and high school in Australia.

26    In an accompanying personal circumstances form, Mr Fetalaiga described in some detail the effect that his removal from Australia would have on his two Australian-born daughters and the bonds he has with other minor children in his life. He also referred to the pain that removal would cause to the other members of what he depicted as a close-knit family comprised of his parents and siblings. He also described hardships, including possible depression that he said he would experience if he were returned to New Zealand.

27    There is no basis to think that the Tribunal failed to consider any of these matters. At paragraph 6 of its reasons, the Tribunal acknowledged that Mr Fetalaiga came to Australia in 1997 at the age of 11, and at paragraph 80 it noted; ‘Whilst there is a level of tolerance afforded to him, as someone who arrived in Australia as a young person, that tolerance is offset by the nature of the conduct engaged over a very lengthy period and the risk of its repetition.’

28    The Tribunal gave detailed consideration to the interests of Mr Fetalaiga’s daughters and to the impact on his family in Australia of removing him from this country. It turned its mind to the effect of removal on a number of other children in Mr Fetalaiga’s life. The Tribunal noted the support that he was likely to receive from his family, including (at para 97) that if he were released from detention in Australia he would be able to find employment in the family business of tree lopping.

29    The Tribunal also noted Mr Fetalaiga’s schooling in Australia, and can be taken to have included that in its consideration of the case he advanced, in the Tribunal’s words (at para 101), ‘to the effect that he was a long-term resident, who had established his life, home and family in Australia from a young age’.

30    As required by mandatory Ministerial Direction No. 110, the Tribunal considered the impediments Mr Fetalaiga would face if he were to return to New Zealand. While the Tribunal did not refer specifically to Mr Fetalaiga’s claim that he may suffer from depression, this was hardly a substantial claim based on established facts. Mr Fetalaiga referred in his personal circumstances form only briefly to the ‘[p]ossibility of depression from missing my children’ and this was not supported by any expert evidence. In any event, the Tribunal can be taken to have brought the possibility to bear in its deliberations. This appears from the Tribunal’s reference to psychological hardship in its conclusions about impediments on removal to New Zealand, which were:

134.    It may be accepted that the Applicant would have limited to no social or familial support in NZ. The Tribunal considers that the Applicant will be personally and deeply affected by permanent removal to NZ. This potential emotional and psychological hardship can be withstood, but this potential removal and subsequent adjustment should not be easily dismissed.

135.    The Tribunal finds that the Applicant could likely re-establish himself in NZ and maintain basic living standards. Nevertheless, removal is a potentially devastating consequence, including associated negative impacts on his immediate family. This other consideration weighs in favour of revocation.

31    Mr Fetalaiga had legal representation before the Tribunal and filed a statement of facts, issues and contentions dated 23 October 2025. This provided little detail beyond the matters that have been described already, although it did contend that in light of steps Mr Fetalaiga had taken towards rehabilitation, the risk of Mr Fetalaiga reoffending was low. This was said to reduce the weight to be given to the protection of the Australian community, and also the weight to be given to Mr Fetalaiga’s record of family violence. The Tribunal expressly took rehabilitation into account in respect of the protection of the Australian community. Its conclusion at paragraph 74 that Mr Fetalaiga posed ‘a low to moderate likelihood of re-offending’ confirms that it also took the contention about a low risk of reoffending into account.

32    There is no apparent basis for the contention that the Tribunal constructively failed to exercise its jurisdiction. I do not uphold ground 1.

Irrelevant consideration

33    When I asked Mr Fetalaiga at the hearing what irrelevant consideration the Tribunal had taken into account, he was unable to say.

34    The Tribunal’s reasons followed the schema of the Ministerial direction, although it was clear that the Tribunal also applied independent thought to the matter. There is nothing mentioned in the reasons that appears on the face of it to be a matter which, under the Migration Act, was not to be taken into account in the exercise of the power under s 501CA(4)(b)(ii): see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J).

35    I do not uphold ground 3.

Proper genuine and realistic consideration

36    In Plaintiff M1/2021 at [26] the plurality of the High Court cautioned against the use of verbal formulae such as ‘proper, genuine and realistic consideration’ in the present context. But even if the formula is applied on its terms, it follows from the matters canvassed in respect of ground 1 that there is no merit in ground 4. I do not uphold it.

Disposition

37    The application will be dismissed, with costs.

Associate:

Dated:    30 July 2026