FEDERAL COURT OF AUSTRALIA

Onyema v Commonwealth of Australia (as represented by the Australian Taxation Office) (extension of time, application for stay) [2026] FCA 1530

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Commissioner of Taxation”.

2.    The Second, Third, Fourth and Fifth Respondents are removed as parties to the proceedings.

3.    The Respondents’ notice of objection to competency dated 20 July 2026 is dismissed.

4.    The Applicant’s interlocutory application for a stay dated 26 August 2026 is dismissed.

5.    The Applicant has leave under r 8.21 of the Federal Court Rules 2011 (Cth) to rely on the amended originating application attached to his interlocutory application dated 16 September 2026.

6.    The costs of the Applicant’s interlocutory application for a stay, and the Respondents’ notice of objection to competency, are reserved.

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

REASONS FOR JUDGMENT

HILL J:

A.    INTRODUCTION

1    The Applicant (Mr Onyema) is applying for judicial review of a decision to terminate his employment, made on 28 October 2025. This proceeding is to determine whether he requires an extension of time (and, if so, whether he should be granted one); to determine whether there should be a stay of that decision to terminate his employment; and to determine whether he should be given leave to amend his originating application.

2    For the reasons explained below:

    Mr Onyema does not require an extension of time to bring these proceedings;

    I do not grant a stay of the decision to terminate Mr Onyema’s employment; and

    Mr Onyema is granted leave to amend his originating application.

It is also necessary to address the proper respondents to the proceeding.

3    Materials: Mr Onyema has filed four affidavits, dated 17 May 2026, 27 July 2026, 2 September 2026 and 17 September 2026.

4    The Respondents have filed an affidavit of Mr Timothy Silvers, Assistant Commissioner in the Australian Taxation Office (ATO), dated 23 September 2026. The Respondents have also filed a tender bundle containing relevant correspondence and ATO policies.

B.    BACKGROUND

B.1    Overview

5    Mr Onyema was employed at the ATO from February 2023 until his employment was terminated in October 2025. The ATO found that Mr Onyema accessed, or attempted to access, taxation records without any business purpose for the access. As set out further in section B.2 below, the key events leading to termination were:

    Mr Onyema was suspended from duty in March 2025;

    After an investigation, an ATO officer notified Mr Onyema in June 2025 that he was suspected of having breached the Australian Public Service (APS) Code of Conduct;

    In September 2025, the ATO officer determined that Mr Onyema had breached the APS Code of Conduct;

    On 28 October 2025, a different ATO officer decided to terminate Mr Onyema’s employment.

6    In November 2025, Mr Onyema sought to bring proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for review of the termination decision. As set out in section B.3 below, an application that Mr Onyema sought to file electronically in November 2025 was treated as pending until May 2026, and Mr Onyema re-filed that application in May 2026.

7    The Respondents contend, and Mr Onyema disputes, that Mr Onyema requires an extension of time to bring this proceeding. The Respondents have filed a notice of objection to competency dated 20 July 2026 to that effect. Mr Onyema filed an application for an extension of time on 13 August 2026, but he maintains that he does not need any extension.

B.2    Key events leading to termination of employment

8    The following sets out the key events leading to the termination of Mr Onyema’s employment.

9    Mr Onyema suspended from employment without remuneration (Mar 2025): On 28 March 2025, Mr Onyema was suspended from employment, without remuneration. The decision-maker (Ms Jenna Martin) stated that she had received information from the ATO Fraud Prevention and Internal Investigations team that indicated that Mr Onyema may have breached the APS Code of Conduct. That information was in turn based on information received from Victoria Police.

    The information related to allegations that Mr Onyema was then in remand after being charged with 34 offences related to stalking and domestic violence. It also alleged that he had used ATO systems to obtain access to the taxation records of the victim and her ex-partner, without a business need and in circumstances that were unauthorised.

    Ms Martin decided to suspend Mr Onyema without remuneration immediately, under reg 14(3) of the Public Service Regulations 2023 (Cth) (PS Regulations). She stated that this decision was required to be reviewed at reasonable intervals, under reg 14(5).

    Ms Martin invited Mr Onyema to respond by 4 April 2025.

10    Suspension without remuneration affirmed (Apr-May 2025): Ms Martin reviewed and affirmed the decision to suspend Mr Onyema without remuneration on 30 April 2025, and again on 30 May 2025. These letters referred to the factors in deciding whether to suspend without remuneration set out in [7.18] of the Handling Misconduct – a human resource manager’s guide (February 2022) (the Handling Misconduct Guide). The 30 May letter set out matters raised by Mr Onyema in a telephone conversation between him and Ms Martin on 15 May 2025.

11    ATO suspects breach of APS Code of Conduct (Jun 2025): On 5 June 2025, Ms Jovanovic from the ATO emailed Mr Onyema a Notice of Suspected Breach of the APS Code of Conduct (Breach Notice). The Breach Notice stated that Victoria Police had asked the ATO Fraud team to investigate whether Mr Onyema had obtained unauthorised access to taxation records of people known to him, including his ex-partner Ms A. The Breach Notice set out the eight alleged occasions of unauthorised access, based on a review of the ATO’s Central Audit Logs (CAL), which showed the searches made of taxation records from Mr Onyema’s computer.

12    The Breach Notice set out four suspected breaches of the APS Code of Conduct; namely:

    First, a failure to comply with the directions contained in the Access to taxation records Chief Executive Instruction (CEI) (contrary to s 13(5) of the APS Code of Conduct);

    Second, a failure to comply with the Conflicts of interest CEI (contrary to s 13(5) and 13(7) of the APS Code of Conduct);

    Third, Mr Onyema did not comply with s 8XA of the Taxation Administration Act 1953 (Cth) (TA Act) (unauthorised access to taxation records) in connection with his APS employment (contrary to s 13(4) of the APS Code of Conduct); and

    Fourth, Mr Onyema had not behaved in a way that upheld APS values, in particular the ethical value (contrary to s 13(11) of the APS Code of Conduct).

13    The Breach Notice attached the supporting information relied on by the ATO, including an ATO “UA Assessment Report” and materials received from Victoria Police including a charge sheet and statement of alleged facts. Ms Jovanovic stated in the cover email that she was the “breach decision maker” and would be undertaking a misconduct investigation. She invited Mr Onyema to provide a response by 12 June 2025.

14    Mr Onyema provided a response on 17 June 2025, denying that he had breached the APS Code of Conduct.

15    Suspension with remuneration (Jul 2025): On 3 July 2025, Ms Martin reviewed Mr Onyema’s suspension from duty. She determined that Mr Onyema should remain suspended from duty, but that his suspension would be with remuneration from 3 July 2025, on the grounds of financial hardship.

16    Mr Onyema provides further material (Jul 2025): On 8 and 9 July 2025, Mr Onyema provided further material in relation to the suspected breaches of the APS Code of Conduct. The 9 July email attached an “Expert Opinion Report”, said to be written by “Dr Jane Doe, PhD” of the Greensborough Centre, which provided an “expert opinion on digital coercion tactics and its psychosocial impact in a family violence matter”.

17    Expert report not issued by Greensborough Centre (Jul 2025): On 18 July 2025, the ATO emailed a copy of the report provided by Mr Onyema to the Greensborough Centre. The Greensborough Centre stated that they did not have an employee named Jane Doe working at Relationships Australia Victoria, and that the report was not issued by the Greensborough Centre.

18    ATO speaks with Ms A (Jul 2025): On 21 July 2025, an officer in the ATO Fraud team spoke to Ms A (who Mr Onyema contended used his computer when she was living with him). She stated that she did not know Mr Onyema’s username or password, that he used his ATO laptop for work, not his personal computer, and that she never lived with Mr Onyema.

19    Supplementary notice of suspected breach (Jul 2025): On 28 July 2025, Ms Jovanovic sent Mr Onyema a Supplementary Notice of Suspected Breach of the APS Code of Conduct (Supplementary Breach Notice). This Notice stated that it was suspected that Mr Onyema had provided the ATO with a fraudulent document, in breach of s 13(11) and s 13(9) of the APS Code of Conduct.

20    Proposed suspension without remuneration (Jul 2025): Also on 28 July 2025, Ms Martin emailed Mr Onyema stating that she was considering changing his suspension to without remuneration, in light of prima facie evidence received from Ms Jovanovic that Mr Onyema had provided a fraudulent document. Ms Martin invited Mr Onyema to provide any submission or information by 30 July 2025.

21    Mr Onyema withdraws expert report (Jul 2025): On 28 July 2025, Mr Onyema sent Ms Jovanovic an email (copying Ms Martin) stating that the “expert opinion was mistakenly attached and should be withdrawn”.

22    Mr Onyema provides materials (Jul 2025): On 31 July 2025, Mr Onyema sent two emails to Ms Jovanovic attaching his response to the Supplementary Breach Notice, and attaching various documents including a character reference. On the same day, he sent an email to Ms Martin providing a response to the review of the suspension.

23    Breach Determination (Sep 2025): On 18 September 2025, Ms Jovanovic (the breach delegate) determined that Mr Onyema had breached the APS Code of Conduct (the Breach Determination).

24    Failure to follow access directions (s 13(5)): Ms Jovanovic found that, on the balance of probabilities, Mr Onyema was responsible for the unauthorised accesses to taxation records, and that he had accessed or attempted to access the taxation records of five people (including his ex-partner Ms A) in circumstances that were considered unauthorised. As such, he failed to follow the directions set out in the Access to taxation records CEI, and breached s 13(5) of the Code. Ms Jovanovic rejected Mr Onyema’s explanation that Ms A had access to his computer at the relevant times, and it was she who accessed the relevant records.

(a)    In one case, the ATO records showed that Mr Onyema was working on a work-related case between 12.37pm and 1.48pm, followed by an unauthorised access to another taxation record at 1.49pm, followed by continued work on a work-related matter until 2.21pm.

(b)    In relation to Ms A, Ms Jovanovic considered it was very unlikely that Ms A could have guessed or “hacked” the password to Mr Onyema’s ATO-issued laptop three times since March 2024 (noting that Mr Onyema said that he changed his passwords every three months). Ms Jovanovic also found that evidence provided by Victoria Police contradicted Mr Onyema’s claims that Ms A had conducted a smear campaign against him.

(c)    Ms Jovanovic stated that she was provided with “SPLUNK” logs which indicate a Source Network Address, indicating whether Mr Onyema was working from home or not. Those logs indicated that, for the dates of the unauthorised accesses, Mr Onyema was not working from home.

25    Conflict of interest (s 13(7)): Ms Jovanovic found that Mr Onyema had a personal connection to the people whose taxation records to which he had obtained unauthorised access, and that he had allowed his personal interests to interfere with his responsibility to act in the best interests of the ATO. Ms Jovanovic found that Mr Onyema had not taken reasonable steps to avoid these conflicts of interest, and he had breached s 13(7) of the APS Code of Conduct.

26    No finding on unlawful conduct (s 13(4)): Ms Jovanovic stated that, while she had determined that Mr Onyema had accessed the taxation records of five individuals in circumstances considered unauthorised, she was unable to make a finding in relation to s 13(4) of the APS Code of Conduct (that is, in relation to a suspected breach of s 8XA of the TA Act).

27    Ethical value, reputation of ATO (s 13(11)): Ms Jovanovic found that Mr Onyema had not behaved in a way that upheld the Ethical APS value. The statement of charges brought by Victoria Police included allegations of unauthorised access to restricted data via his position at the ATO. Ms Jovanovic found that Mr Onyema had created and provided the fraudulent expert report for the purpose of the misconduct investigation. Further, the publicly available information about Mr Onyema’s criminal matter and its connection to his APS employment had the potential to adversely affect the integrity and good reputation of the ATO and the APS.

28    False or misleading information (s 13(9)): Ms Jovanovic stated that her finding that Mr Onyema had created and provided the fraudulent expert report for the purpose of the misconduct investigation meant that he had also breached s 13(9) of the APS Code of Conduct.

29    Communication with sanctions delegate (Sep-Oct 2025): On 26 September 2025, Acting Assistant Commissioner Jade Hamilton (the sanctions delegate) sent Mr Onyema a letter about the sanction (the Proposed Sanctions letter). Ms Hamilton stated that she accepted and would act on the basis of the findings of the breach delegate (Ms Jovanovic). Ms Hamilton stated that her preliminary view was that the most appropriate sanction was termination of Mr Onyema’s employment, and she set out the basis of that preliminary view. She invited Mr Onyema to provide any written submission by 3 October 2025.

30    Mr Onyema sent a response to the Proposed Sanctions letter on 9 October 2025 containing submissions, together with three emails of attachments.

31    Suspension without remuneration, then with remuneration (Oct 2025): On 9 October 2025, Ms Martin emailed Mr Onyema stating that, on the basis of the determination of the breach of the APS Code of Conduct, she was proposing to convert his suspension into suspension without remuneration. She invited his response by 16 October 2025. On 21 October 2025, Ms Martin determined to convert Mr Onyema’s suspension into suspension without remuneration, with effect from 22 October 2025.

32    However, later that day, Ms Martin decided to change Mr Onyema’s suspension to suspension with pay, based on a medical certificate. The medical certificate is from Emmanuel Medical Centre, dated 18 October 2025. The operative part of the certificate provides:

Mr Kenneth Onyema presented to me today 18/10/2025 with a history of anxiety, work related stress, lack of motivation and poor sleep. My assessment was adjustment disorder with associated anxiety. He is awaiting review by a therapist and was unfit for work from 18/10/2025 to 25/10/2025 inclusive.

Thus, the position immediately before termination was that Mr Onyema was suspended with remuneration.

33    Termination Decision (Oct 2025): On 28 October 2025, Ms Melinda Bopping (Assistant Commissioner and sanctions delegate) decided that termination of Mr Onyema’s employment was the appropriate and proportionate sanction in the matter (the Termination Decision). In summary:

(a)    Mr Onyema disputed the Breach Determination on the grounds that a document was not considered as part of Ms Jovanovic’s decision, and he submitted additional evidence regarding the unauthorised accesses. Ms Bopping reviewed the determination report, associated evidence and the additional evidence provided by Mr Onyema. She was satisfied that the Breach Determination was sound and appropriately supported by the available evidence. She stated that, in her role as sanctions delegate, she was required to determine the most appropriate sanction for this matter, and she considered that Mr Onyema’s “views on the determination decision and the additional evidence [he had] provided are not relevant to [the] sanction decision”.

(b)    Ms Bopping then dealt in turn with other matters raised by Mr Onyema, relating to commentary on Victoria Police; nature and seriousness of the breach; employee response and likelihood of recurrence; degree of relevance to the employee’s duties; and personal circumstances and financial hardship. In considering a submission from Mr Onyema that there was no measurable loss and that he had not obtained any personal benefit, Ms Bopping stated that this response gave no confidence that Mr Onyema understood the seriousness of the misconduct, and continued:

Regardless of whether there was any benefit or detriment, the misconduct amounted to a breach of the Code and is inconsistent with the requirements of the Taxation Administration Act 1953 (section 8XA), which, prohibits unauthorised access by ATO officers. (emphasis added)

(c)    Ms Bopping concluded that Mr Onyema’s response had not brought to light any significant mitigating factors which would influence her to impose a lesser sanction, or different sanction from that outlined in the sanction letter. The misconduct was so serious that it was no longer appropriate that Mr Onyema remain in the APS. The decision to terminate Mr Onyema’s employment reflected the breach of trust in the employment relationship, the potential risk to the integrity and reputation of the ATO, and the need to uphold the standards of integrity expected of all APS employees.

B.3    Timing of judicial review application

34    The other background matter is the timing of Mr Onyema’s attempts to apply for judicial review of the Termination Decision. Mr Onyema’s 27 July affidavit sets out the following chronology of events relating to his attempts to bring this proceeding (omitting references to annexures, and putting the items on 24 November 2025 in chronological order). The Respondents accept this chronology.

C.    ANALYSIS

35    Position with self-represented litigants: The Applicant is self-represented in this proceeding. A judge has a duty to ensure that a hearing is fair to all parties (that is, both applicants and respondents). If a party does not have a lawyer, the judge may tell them about the practices and procedures of the Court, as relevant, to try to ensure a fair hearing. However, the judge does not give legal or tactical advice to a party who does not have a lawyer, because the judge must be impartial. See generally NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court); Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court). Importantly, this duty is to ensure that the Court’s processes are fair: the Court must apply the law as it is, and cannot simply make orders to achieve a result that the Court thinks is “fair”.

36    Judicial review only determines lawfulness of administrative decisions: Another general point is that judicial review proceedings only consider whether an administrative decision is lawfully made; it is not the role of the Court to determine whether the decision was factually correct on the merits: see Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36 (Brennan J); Heiner v Minister for Home Affairs [2022] FCAFC 81 at [44] (the Court); Byron Aged Care Limited v Aged Care Quality and Safety Commissioner [2022] FCA 1060 at [75] (Perry J).

C.1    Extension of time application

37    The first issue is whether the Applicant requires an extension of time and, if so, whether an extension should be granted.

38    Time for bringing applications (ADJR Act s 11): As noted, the originating application seeks review of the Termination Decision under the ADJR Act.

    By s 11(1)(c) of that Act, an application for review “shall be lodged with a Registry” of (relevantly) this Court “within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows”. (emphasis added)

    By s 11(3), the prescribed period commences on the day on which the decision is made and ends on the 28th day after (relevantly) the day on which the document setting out the terms of the decision is furnished to the applicant.

39    Calculating the prescribed period: Here, the Termination Decision was made on 28 October 2025. Ms Jovanovic emailed Mr Onyema on that day around 10.30am, attaching a letter titled “Sanction imposition” from Ms Bopping, and a “Notice of Termination of Employment”, both dated 28 October 2025. The prescribed period in s 11(3) therefore began on 28 October 2025. The prescribed period therefore ended on 25 November 2025 (including the start day, but not including the final day: see Acts Interpretation Act 1901 (Cth), s 36(1) items 2 and 6).

40    When was the application lodged? Mr Onyema sought to file the originating application and affidavit in support in a series of three emails sent between 21 and 24 November 2025. The Rules provide as follows for the electronic lodging of documents:

    By r 2.21(1)(d), a document may be lodged with the Court by (relevantly) being sent by electronic communication to a Registry, in accordance with r 2.23.

    By r 2.23(1), a document that is sent by electronic communication to a Registry must:

(a)     be sent by using the Court’s website at http://www.fedcourt.gov.au; and

(b)     be in an electronic format approved by a Registrar for the Registry; and

(c)     if a document is required to be in accordance with an approved form—so far as is practicable, be in an approved form that complies with rule 2.12 or 2.13; and

(d)     be capable of being printed in the form in which it was created without any loss of content.

An affidavit must be sent as an image (r 2.23(2)).

    By r 2.24(1)(a), if a document sent to a Registry by electronic communication in accordance with r 2.23 is accepted at the Registry, and is a document that must be signed or stamped, a Registrar will (for a document that the Rules require to be endorsed with a date for hearing) insert a notice of filing and hearing as the first page of the document.

    By r 2.25(1), a document is filed if it is lodged with the Court in accordance with r 2.21(1); and (relevantly) it is accepted in a Registry by having the seal of the Court affixed to it. By r 2.25(3), if a document is sent by electronic communication to a Registry, the document is, if accepted by a Registry under r 2.25(1), taken to have been filed:

(a)     if the whole document is received by 4.30 pm on a business day for the Registry—on that day; or

(b)     in any other case—on the next business day for the Registry.

41    Evidence of date of lodgment: Mr Onyema attaches a screenshot from the Court’s elodgment portal which states that the “transmission date” and “lodgment date” were both 24 November 2025, at around 8.35am AEST. This screenshot states that the application was “processed” on 27 November 2025. An email from elodgment in this Court dated 27 November 2025 stated that the lodgment had been marked pending, and gave the following reason for that marking:

Please remove all the documents uploaded as Affidavit. They all need to be combined as 1 document - an affidavit with [its] annexures. Hence, you should only have 3 documents uploaded.

42    That reason was confirmed in an email from Registry on 29 December 2025. Mr Onyema sought to re-file the affidavit in May 2026: see the chronology in [32] above. The notice of filing in the originating application that was accepted for filing (inserted under r 2.24) states that the date of lodgment was “18/05/2026” and the date accepted for filing was “1/07/2026”. This refers to the document that Mr Onyema re-filed on 18 May 2026, after being told that the previous elodgment was rejected because it was over 90 days old.

43    “Lodged” cf “filed”: As noted, s 11(1)(c) of the ADJR Act requires an application for review to be “lodged” with a Registry within a prescribed period. “Lodged” is different from “filed”: filing a document is the act of the Court, whereas lodging a document is the act of a party: EIW20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1514 at [58] (Feutrill J), citing Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171 at [16] (the Court). An application for review will be “lodged” when it comes into the possession of a Registry or a staff of a Registry: EIW20 at [67], quoting Hong v Minister for Immigration and Multicultural Affairs [1998] FCA 341; (1998) 82 FCR 468 at 471 (the Court).

44    The Respondents refer in writing to Papoutsakis v Prime Capital Securities Pty Ltd [2023] FCA 205, but that case concerned an application under r 36.05 of the Rules to extend time to appeal. Rule 36.03 provides that an appellant must “file” a notice of appeal within the specified period. As noted, in this case the issue is when a document was “lodged”, so cases on when a document was “filed” do not assist.

45    Application lodged on 24 November 2025: The evidence summarised above indicates that the originating application emailed on 24 November 2025 was received by the Court on that date, even though it was not accepted for filing.

    The Respondents argued that the emails from Registry, particularly the email dated 29 December 2025, showed that the originating application had not yet been accepted for lodging. However, an email from Registry dated 24 November 2025 referred to the documents (including the originating application) which had been provided to Registry by Mr Onyema, and stated that Mr Onyema’s application “had been referred to the National Duty Registrar for consideration”. That contrasts with the email from Registry dated 21 November 2025 which stated that the previous version of the originating application had been rejected because “[d]ocuments have been uploaded using the incorrect document type”. And as noted, the notation in the Court’s elodgment portal was that documents had been lodged on 24 November 2025.

    At the hearing, Mr Onyema provided a copy of the 24 November 2025 email, and the attachment “Form 066 Originating application for judicial review”. The Respondents accept in light of that evidence that the originating application lodged on 24 November 2025 was in the same form as the originating application that was lodged in May 2026, and is properly described as an “application for review” within s 11 of the ADJR Act.

46    There might be a query whether the affidavit that Mr Onyema sought to file with the originating application was also received by the Court on 24 November 2025: a document is only lodged under s 2.21(1)(d) if it is sent in accordance with r 2.23, and r 2.23(2) requires that an affidavit be sent as “an image”. However, the timing of the receipt of the affidavit in support does not affect when the application itself was lodged. An application for review under the ADJR Act must be made in such manner as is prescribed by the Rules (see ADJR Act s 11(1)(a)). The Rules provide that a person who wants to apply for an order under s 11(1) of the ADJR Act must file an originating application, in accordance with Form 66 (Rules r 31.01(1)). In other words, an affidavit in support is not part of “the application” for review under the ADJR Act.

47    Conclusion – no extension of time required: For these reasons, Mr Onyema does not require an extension of time to bring these proceedings under the ADJR Act.

C.2    Application for stay of Termination Decision

48    The second matter is whether the Court should stay the decision to terminate Mr Onyema’s employment.

C.2(a)    ADJR Act s 15 (stay)

49    By s 15(1) of the ADJR Act, the Court or a Judge “may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation” of a decision that is the subject of judicial review proceedings.

50    The parties both proceeded on the basis that s 15 requires consideration of the same matters as for an interlocutory injunction; namely, whether an applicant enjoys sufficient prospects of success such that there is a serious question to be tried; and whether the balance of convenience favours the grant of a stay. Some cases indicate that the test under s 15 may be whether there are reasons or circumstances that make it just that the Court grant a stay, but also indicate that there is little practical difference between this broader test and the principles that apply to an interlocutory injunction: see Azaria Family Day Care Pty Ltd v Secretary, Department of Education and Training [2018] FCA 1640 at [6]-[8] (Wheelahan J), and the cases cited.

51    In the context of interlocutory injunctions, these two considerations (serious question to be tried, balance of convenience) involve related inquiries, and each should not be considered in isolation from the other: Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [67] (the Court). The same must be true in an application to stay an administrative decision.

C.2(b)    Whether a serious question to be tried

52    The first question is whether there is a serious question to be tried.

53    Mr Onyema’s arguments (serious question): Mr Onyema’s written submissions on the stay application summarise his main arguments as follows:

(1)    Failure to exercise the discretion personally: The Termination Decision states (in para 2) that Ms Bopping accepts and adopts the preliminary view of Ms Hamilton. Ms Bopping was appointed after that preliminary view had been formed and before Mr Onyema’s submissions of 8 October 2025 existed; her documentation package was assembled by the breach delegate, Ms Jovanovic; and no instrument of delegation authorising her to exercise the power in s 15(1)(a) of the Public Service Act 1999 (Cth) (PS Act) has been produced. Mr Onyema contends that the discretion was vested in her personally.

(2)    Bifurcation of the sanction function: Mr Onyema contends that Ms Hamilton formed the preliminary view of termination, but Mr Onyema’s responses to that view were received and considered by Ms Bopping. Mr Onyema says that no single delegate both formed the preliminary view and heard his answer to it, and he was denied a decision-maker who had formed her own view and then engaged with his response to it.

(3)    Reliance on a contravention the Breach Determination declined to find: The Termination Decision (at para 21) states that Mr Onyema's conduct was inconsistent with s 8XA of the TA Act. However, the Breach Determination (at para 113) states that the breach delegate was “unable to make a finding in relation to subsection 13(4) of the Code”, being the provision requiring compliance with Australian law. The Breach Determination states (at paras 40-41) that the breach delegate was able to make such a finding on the balance of probabilities. Mr Onyema contends that the inability was evidentiary. The sanction stage nonetheless relied on the contravention.

(4)    (a) Contrary evidence treated as irrelevant: The Termination Decision (at para 15) states that Mr Onyema’s views on the Breach Determination and the additional evidence he provided are “not relevant” to the sanction decision. That evidence included the contemporaneous material referred to in argument (4)(b) below, which bears on whether Mr Onyema performed the accesses at all. He contends that evidence going to attribution is not irrelevant to sanction.

(b) Contemporaneous evidence of third-party use not investigated: Mr Onyema contends that on 8 March 2024 the CAL records an ICP access to Ms A’s own taxpayer record at 3.07-3.08pm. Forty-four minutes later, at 3.52pm, an Alfred Health transition letter was downloaded onto the same workstation from Ms A’s personal email account, consistent with her employment circumstances at that time. Mr Onyema contends that documentary material places her at his premises on 10-11 February 2025, contemporaneous with a further CAL entry. Her own recorded statements are that she had Mr Onyema’s passwords, that she had previously asked him to look up taxpayer information, and that she was sometimes alone at the premises in the evening – three of the eight alleged accesses occurred in the evening. None of this was analysed. Mr Onyema says that he does not contend that this material proves who used the workstation, but he contends that it raised an alternative explanation the Respondents were obliged to investigate and did not.

(5)    No evidence capable of establishing authorship: Mr Onyema contends that the device-side material – operating system event logs, screen lock and unlock events, session and device identifiers, VPN and authentication logs, and any forensic image – was not obtained by the Respondents and has not been produced, despite Mr Onyema’s requests. The Director of Investigations recorded that the logs do not include activity in applications such as Outlook, Word, Excel or share drives, and that accordingly the Respondents cannot confirm what Mr Onyema was doing when there are no recorded logs of ATO systems. Mr Onyema contends that a user identifier establishes which account was used, not who used it, and that ICP and Siebel were pinned and open on the workstation, so no familiarity with the systems was required.

(6)    Apology treated as admission: Mr Onyema contends that he apologised for lax security practices – permitting a co-resident near an active terminal on which ICP and Siebel were pinned and open – and advanced that apology as mitigation under s 7.18 of the Handling Misconduct Guide. It was treated as an admission of the accesses themselves.

(7)    Undisclosed originating complaint: Mr Onyema contends that the originating complaint document lodged on or about 25 March 2025 was not disclosed to him during the process and came to light only during the Merit Protection Commissioner review. It recorded a request for specific adverse employment action against Mr Onyema before any investigation, and recorded the affected person's statement that she had previously asked him to conduct searches. Ms Martin and Ms Hamilton each received that complaint on 24 March 2025 and neither disclosed that receipt when making adverse decisions.

(8)    Delegation: Mr Onyema contends that Ms Hamilton signed the sanction consideration letter of 26 September 2025 as Acting Assistant Commissioner and signed correspondence days later under a different title. No instrument of acting delegation authorising her to exercise the sanction consideration power, and no instrument authorising the transfer of that function to Ms Bopping, has been produced, notwithstanding request.

(9)    Unpaid suspension beyond the regulated period: Mr Onyema was suspended without remuneration from 28 March 2025. Remuneration was restored on 3 July 2025 and unpaid suspension was re-imposed on 22 October 2025, six days before termination. Mr Onyema contends that the unpaid periods exceeded the period permitted without a compliant determination of exceptional circumstances under reg 14(4) of the PS Regulations.

54    Proposed amended originating application: As explained in section C.3 below, Mr Onyema seeks to rely on an amended originating application which clarifies and tightens the arguments in the initial document. The “Details of Claim” in Pt C of the amended originating application contains six claims, while the “Grounds of Application and particulars” in Pt D contains 12 grounds, which overlap with the claims set out in Pt C. Those claims and grounds are set out in the appendix. The arguments set out above capture the essential points raised by the amended originating application.

55    Preliminary assessment of arguments: The Court does not undertake a full assessment of an applicant’s arguments on a stay application. Instead, I will consider the arguments at an impressionistic level, similar to the level of analysis carried out on an extension of time application: as to which, see Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [17] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

56    Two decision-makers involved with sanctions decision: One set of arguments concerns the fact that there were two decision-makers involved in the imposition of sanctions on Mr Onyema (see arguments (1)-(2) above). Ms Hamilton (Acting Assistant Commissioner) sent Mr Onyema the Proposed Sanctions letter in September 2025 stating that her preliminary view was that termination was the most appropriate sanction; however, the actual decision to terminate Mr Onyema’s employment was made by Ms Bopping (Assistant Commissioner).

57    In some cases, there can be legal error if there is an unnotified change of decision-maker: see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326. However, the particular difficulty arose in WZARH because the first decision-maker had conducted an interview, and therefore was in possession of non-verbal information (about the person’s demeanour and so on) that the second decision-maker did not have: WZARH at [40]-[43] (Kiefel, Bell and Keane JJ). That consideration does not apply here. Nor could it be said that the change of decision-maker from Ms Hamilton to Ms Bopping changed the nature of the opportunity that had previously been given to Mr Onyema: WZARH at [64] (Gageler and Gordon JJ); EUW17 v Minister for Immigration and Border Protection [2019] FCA 744 at [36] (Jackson J). Here, Ms Bopping expressly adopted and accepted Ms Hamilton’s preliminary assessment and the reasoning in the Proposed Sanctions letter. Accordingly, there is no inherent difficulty in two delegates being involved at the sanctions stage, and the change of decision-maker did not cause any practical unfairness to Mr Onyema.

58    At the hearing, Mr Onyema also drew attention to an email sent to Ms Bopping by Ms Tara Smith on 15 October 2025. That email provided briefing material and requested that, if Ms Bopping agreed with the sanctions imposition brief, she advise the case officer who would then draft a sanctions imposition letter. Mr Onyema contended that this email shows that Ms Bopping did not personally exercise the sanctions power, but acted on the instruction of others, referring to Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451. However, in Tickner v Chapman the Court interpreted the relevant Act as requiring the Minister personally to consider representations made. That requirement of personal consideration is not always present; for example, in Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 282 CLR 1, the High Court held that it is not a condition of the valid exercise of the power in s 501CA(4) of the Migration Act 1958 (Cth) for the Minister, when personally exercising that power, personally to read and examine the submissions, representations and other materials received in every case: at [33] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ). I would not interpret s 29 of the PS Act as precluding the decision-maker from relying on summaries prepared by more junior officers, consistent with McQueen. The process followed here, where the decision-maker received a briefing and determined what sanction to impose, is entirely orthodox.

59    At the hearing, Mr Onyema also drew attention to the form of the email from Ms Smith to Ms Bopping, as reproduced in the Tender Bundle provided at the hearing. Underneath the email from Ms Smith sending the briefing material to Ms Hamilton, the following appears:

See below sanction decision brief for Mel. I’m just waiting on information from John on case precedents and confirmation from medical practice if character reference was issued by the Doctor. Could you please review the sanction imposition decision brief document and advise if there is anything else you think I should include?

60    Mr Onyema contended that it was apparent that the document provided was incomplete, and that earlier emails in the chain had been deleted. That seems like a probable inference; however, nothing turns on it. This proceeding is to determine the lawfulness of the Termination Decision made by Ms Bopping (and potentially the lawfulness of the Breach Determination, which is an essential preliminary to that decision). Earlier emails in the email chain sending a briefing to Ms Bopping do not bear on that question.

61    Sanctions delegate did not review findings of breach: A second set of arguments concerns the fact that the sanctions delegate stated that she would not review the findings of breach, and on that basis did not have regard to the extra information provided by Mr Onyema (see arguments 4(a) and (b) above).

62    The roles of the breach delegate and the sanctions delegate are set out in procedures made by the Agency Head for the purposes of s 15(3) of the PS Act. The applicable procedures in September and October 2025 were the ATO Procedures for determining breaches of the APS Code of Conduct and the Imposition of Sanctions (15 July 2025) (ATO Breach Procedures).

    The ATO Breach Procedures describe the role of breach delegate (referred to as the “breach decision-maker”) (item 3), sanction delegate (item 4), and suspension delegate (item 5). The role of the breach decision-maker is to determine in writing whether a breach of the APS Code of Conduct has occurred (item 3.1). The sanction delegate determines whether a sanction should be imposed for any breach of the APS Code of Conduct, and is required to hold a delegation of the power under s 15(1) of the PS Act (item 4.1). The ATO Breach Procedures do not prevent the breach decision-maker from being the sanction delegate in the same matter (item 4.2).

    Item 9 sets out the breach determination process. This process must be carried out with as little formality, and as much expedition, as a proper consideration of the matter allows, but must be consistent with the principles of procedural fairness (item 9.1 and 9.2). By item 9.3, a breach determination will not be made in relation to a suspected breach of the APS Code of Conduct by a current or former ATO employee unless reasonable steps have been taken to:

a.     inform the employee or former employee of:

i.     the details of the suspected breach (including any subsequent variation of those details); and

ii.     in the case of a current employee in the ATO, the sanctions that may be imposed on the employee under subsection 15(1) of the PS Act; and

b.     give the employee or former employee a reasonable opportunity to make a statement in relation to each suspected breach (or subsequent variation to any initially suspected breach).

    Item 11 sets out the process for imposing a sanction. Item 11.2 provides that, if a determination is made that a current ATO employee in the ATO has breached the APS Code of Conduct, a sanction will not be imposed on the employee unless reasonable steps have been taken to:

a.    inform the employee of:

i.     the determination of a breach of the Code; and

ii.    the sanction or sanctions that are under consideration in accordance with subsection 15(1) of the [Public Service] Act; and

iii.    the factors that are under consideration in determining any sanction to be imposed; and

b.    give the employee a reasonable opportunity to make a statement in relation to each sanction/s under consideration.

63    The ATO Breach Procedures indicate that the breach delegate and sanction delegate perform different roles: the description of the sanctions determination process in item 11 indicates that this determination is premised on, and does not re-visit, the finding that there has been a breach of the APS Code of Conduct. In particular, the sanction delegate informs the employee of the determination, and the sanctions under consideration, but only invites a statement in relation to the sanction(s) under consideration (see item 11.2(a) and (b)). The form of delegation (discussed next) is expressed similarly.

64    These features indicate that Ms Bopping correctly understood the scope of her function as sanctions delegate, and that it was at least open (and arguably correct) to treat the question of whether there had been a breach of the APS Code of Conduct as having been determined by the breach delegate. That has the consequence that Ms Bopping was correct to conclude that new material going to the question of breach was not relevant to her task as sanctions delegate. Mr Onyema had been given a full opportunity to put relevant information to the breach delegate as part of the Breach Determination process.

65    Issues with delegations: A third argument is that the relevant decision-makers did not hold the necessary delegations required to exercise the power (either to determine a breach, impose a sanction, or suspend an employee from duties) (see argument (8) above).

    A delegation is required to exercise the powers to impose sanctions, to terminate employment, and to suspend an employee from duties, because those powers are all conferred on an “Agency Head” (see, respectively, PS Act, s 15(1); s 29(1); and s 28 read with PS Regulations reg 14). By contrast, the power to determine whether there has been a breach of the APS Code of Conduct must be exercised in accordance with procedures made under s 15(3), but the PS Act does not confer these powers on any identified office-holder.

    The Respondents have provided a set of delegations, which indicates that the Commissioner for Taxation (the Agency Head) has delegated his or her functions under the PS Act to the “Deputy Commissioner, ATO People”. The Deputy Commissioner has in turn authorised ATO officers (identified by job title) to exercise various powers. The relevant instruments dated 27 May 2025 and 28 July 2025 delegate specified powers and functions “to any person from time to time holding, occupying or performing the duties of,” the roles specified in the instrument.

    The 27 May 2025 instrument delegated the power to impose a sanction on an APS employee “where it is determined in accordance with procedures established under [s 15](3) … they have breached the APS Code of Conduct” on (relevantly) “DC, ATO People” and “SES in ATO People”. Those roles were likewise delegated the power to terminate the employment of an ongoing non-SES employee for breach of the APS Code of Conduct. The 28 July 2025 instrument is to the same effect.

    The 27 May 2025 instrument delegates the power to suspend an APS employee for suspected breach of the APS Code of Conduct under reg 14 on (relevantly) “DC, ATO People”, “SES for non-SES employees in their lines”, “EL2, Working Well, ATO People” and “EL1, Working Well, ATO People” for non-SES employees.

66    Mr Onyema contended at the hearing that there are issues with these instruments of delegation. First, he submitted that a later email he received from Ms Hamilton (confirming an extension of time to respond to her letter) identified her as a “Director”, not a member of the Senior Executive Service. That point is without significance: the instruments delegate the relevant powers on any person from time to time holding, occupying or performing the duties of the role. Ms Hamilton’s letter setting out her preliminary views on sanctions states that she is the delegate under s 15(1) of the PS Act, and the covering email identifies her as “Acting Assistant Commissioner”. That evidence is not undermined by later correspondence (after she had performed the role of setting out preliminary views on sanction) identifying her as a Director.

67    Second, Mr Onyema submitted that the ATO has not provided any clear information whether the suspension delegate, Ms Martin, was employed at the necessary level to hold the delegation to exercise those suspension powers. He also submitted that the instrument of delegation does not specify the authority of the suspension delegate to make a decision that a person is to remain on suspension without pay after 30 days. However, the relevant legal requirement is that Ms Martin in fact hold the necessary delegation, not that she expressly identify the source of the delegation in her decision. The signature block to the cover email to Ms Martin’s initial suspension decision identifies her as Assistant Director in the Conduct, Performance and Reviews Team in Working Well, ATO. As noted, the roles that may exercise the suspension power include EL1s and EL2s within Working Well, ATO. And a delegate does not require a separate delegation to decide to keep a person on suspension after 30 days; instead, the question is whether that decision is authorised by the PS Regulations. By reg 14(4), if a suspension is without remuneration, the period without remuneration must not be more than 30 days unless exceptional circumstances apply. It is not a question of delegation.

68    Separately, even if there were an issue with the delegation to Ms Martin, that would not affect the validity of the Termination Decision. The power to impose sanctions depends on there being a finding of a breach of the APS Code of Conduct, and therefore any error in the Breach Determination (if it were established) would mean that the Termination Decision was also invalid, subject to questions of materiality. But a decision on sanction and a decision on suspension are legally independent of each other, even though they both arise from a suspected breach of the APS Code of Conduct. For the same reason, Mr Onyema’s arguments about whether the period of unpaid suspension went beyond what was permitted by reg 14(4) could not affect the lawfulness of the Termination Decision (cf argument (9) above).

69    Initial Victoria Police referral not disclosed: A fourth argument was that the ATO did not disclose the initial complaint made about Mr Onyema. At the hearing, Mr Onyema referred to a document headed “Template attributes”, which on its face appears to record a complaint that was made to Victoria Police (about Mr Onyema by Ms A), which was then sent to the ATO Complaints team on 24 March 2025. Mr Onyema complained that he was not provided this document during the breach determination and sanctions processes, and only discovered this document during his merits review proceeding to challenge the Breach Determination (which was discontinued when his employment was terminated) (see argument (7) above). He contended further at the hearing that this document showed that Victoria Police was seeking for Mr Onyema’s employment at the ATO to be terminated, and (as I understand the argument) that the ATO’s decision was therefore taken for an improper purpose, or the decision was made at the behest of another.

70    There was no requirement for the ATO to provide Mr Onyema with this particular document. The ATO Breach Procedures required the ATO to observe the requirements of procedural fairness, which in general terms require the decision-maker to provide a person with adverse, relevant and credible information. However, that does not mean that the decision-maker must provide all underlying documents containing information: it is generally sufficient to provide the person with the “gist” of the adverse information: see Minister for Immigration and Citizenship v Maman [2012] FCAFC 13; (2012) 200 FCR 30 at [37] (Flick and Foster JJ); Wagambio v Attorney-General (Cth) [2025] FCA 1417 at [20] (Longbottom J). Consistently with that requirement, the ATO Breach Procedures require the ATO to take reasonable steps to “inform the employee of the details of the suspected breach” (item 9.3, see [61] above).

71    Further, I would not interpret this document (which refers to the ATO information that had been received by Victoria Police) as containing any recommendation or urging by Victoria Police that the ATO should reach any particular position on Mr Onyema’s employment. Accordingly, the fact that decision-makers in the suspension and breach processes received this document does not create any reasonable apprehension of bias. Mr Onyema also referred to Div 355 of the TA Act, which deals with confidentiality of taxpayer information. However, Victoria Police did not themselves disclose any taxation information, but rather referred to the ATO an allegation that Mr Onyema may have improperly obtained access to taxation information. Accordingly, the prohibitions in Div 355 of the TA Act are not relevant.

72    Sanctions delegate’s reference to s 8XA: Next, Mr Onyema contends that, although the breach delegate stated that she was unable to make a finding that Mr Onyema had breached s 8XA of the TA Act, the sanctions delegate relied on there being a contravention of s 8XA (argument (3) above). Ms Bopping stated in the Termination Decision that Mr Onyema’s misconduct amounted to a breach of the Code “and is inconsistent with the requirements of” s 8XA of the TA Act, which prohibits unauthorised access by ATO officers: see [32](b) above.

73    This sentence is curious at first glance, but it is necessary to read it in the context of the Termination Decision as a whole. Ms Bopping set out, correctly, the breaches of the APS Code of Conduct that had been found by Ms Jovanovic (which did not include any breach of the law under s 13(4) of the Code, by reference to s 8XA). Ms Bopping stated that she was satisfied that the Breach Determination was sound and supported by the evidence, and stated that new evidence going to the issue of breach was not relevant to the sanction decision. Having correctly recognised the scope of the Breach Determination, it is unlikely that Ms Bopping intended to contradict it later in the decision.

74    Ms Bopping’s statement about s 8XA was made in the context of responding to a submission from Mr Onyema that his conduct had not caused any detriment to anyone else, or personal benefit to him. Read in that context, the reference to the misconduct being “inconsistent with” s 8XA is not a finding that Mr Onyema had committed an offence against s 8XA, but rather that the misconduct found by Ms Jovanovic was inconsistent with the objectives that s 8XA sought to promote. As noted, Ms Jovanovic (the breach delegate) was satisfied on the balance of probabilities that Mr Onyema was responsible for the unauthorised access to taxation records, and that he had accessed or attempted to access taxation records of other people in circumstances that were not authorised: see [23] above.

75    Other arguments: Mr Onyema complains that the sanctions delegate treated his apology for lax security arrangements as an admission, rather than a matter in mitigation (see argument (6) above). But there was no obligation on the sanctions delegate to treat this apology as a matter in mitigation. Mr Onyema refers to para [7.18] of the Handling Misconduct Guide, but that merely sets out non-exhaustive factors that “may” be relevant in deciding whether suspension should be with or without remuneration, and does not refer to apologies. And it is far from clear that this apology was treated as an admission: in summarising Mr Onyema’s submission, Ms Bopping simply states:

You acknowledge and accept responsibility for your lax security of your work laptop, which was exposed, and inconsistent with ATO policy. Further, you acknowledge the nature and seriousness of the misconduct.

76    Mr Onyema also contends that there was not a sufficient basis for the factual conclusions drawn by the breach delegate, and that he has not been provided with all of the underlying material (see argument (5) above). However, as noted, the obligation to provide Mr Onyema with details of the suspected breaches of the APS Code of Conduct did not mean that the ATO was required to provide Mr Onyema with all of the technical information underlying the findings about his computer use: see [69] above. The remainder of this argument appears only to express strong disagreement with the factual conclusions reached by the ATO, which does not establish any legal error. The Court exercises caution before entering on the factual correctness of administrative decisions, because the function of judicial review is only to determine whether those decisions are made lawfully: see [35] above.

77    Conclusions on whether a serious question: For these reasons, I would assess Mr Onyema’s arguments as extremely weak. The prospect that there is a serious issue to be tried in this proceeding could be described as precarious: cf the description used in AML v Longden Super Custodian Pty Ltd [2023] VSCA 118 at [36] (Niall and Kaye JJA).

C.2(c)    Balance of convenience

78    The other issue on the stay application is the balance of convenience. Mr Onyema’s arguments on this point can be summarised as follows:

(a)    Mr Onyema states that he has been without income since the suspension decision in October 2025, and is currently unemployed. He provides some evidence in his May 2025 affidavit about his financial position (setting out his expenses), and he says that he is at a persistent and imminent risk of homelessness, and has experienced a decline in his mental health.

(b)    Mr Onyema says that staying the Termination Decision would not cause disruption to the ATO, because he does not seek to return to duty. He seeks to be returned to suspension with remuneration. He observes that the ATO suspended him with remuneration between 3 and 28 July 2025, on the grounds of financial hardship. He contends that therefore the Respondents do not suffer any prejudice.

(c)    Mr Onyema makes other arguments: that he proposed lesser measures before the decision was made to terminate his employment (restricted duties and so on), and the Termination Decision does not explain why these measures were inadequate. He also states that he has offered to abide by the result of independent forensic testing, whatever it shows.

79    Hardship: On hardship, it is common ground that Mr Onyema will be entitled to back pay if he is successful, but he submits that this does not address his immediate financial needs. Mr Onyema states (and I accept) that he is not currently employed, and he states further that he is not currently in receipt of any income. However, the evidence going to both of these points is somewhat limited.

    I accept that the circumstances of the termination of Mr Onyema’s employment would make it difficult for him to find another job that uses his qualifications and expertise. However, there is no evidence about the extent to which Mr Onyema has sought other employment. He referred at the hearing to having had part-time work for a period, but there is no evidence about the type or duration of this work.

    It is now almost 12 months since Mr Onyema’s employment was terminated. I do not ascribe blame or responsibility for that period, but it does mean that Mr Onyema has had some time to address his financial position. There was some discussion at the hearing whether Mr Onyema could apply for social security for the period until he obtains a job. It is not clear whether Mr Onyema has attempted to apply for social security, or whether he has ever received social security benefits: his oral submissions indicated a considerable reluctance about doing so. But in weighing the balance of convenience, it does appear that there is a potential avenue for Mr Onyema to obtain at least some income, even if it is of course much less than his previous remuneration at the ATO.

    Mr Onyema submitted at the hearing that a reason for restoring his remuneration is to go some way towards addressing the imbalance in the resources available to him and to the ATO to pursue this proceeding. I do not treat this matter as relevant to the balance of convenience: Mr Onyema is entitled to bring proceedings to challenge the termination of his employment, but it is not part of the balance of convenience to seek to increase the resources available to him for that purpose.

80    There is no current evidence about Mr Onyema’s medical condition. The only evidence is the medical certificate provided to the ATO in October 2025, which is fairly limited in scope: see [31] above. I would be prepared to accept that Mr Onyema faces medical challenges, but in the absence of evidence I cannot give this factor any significant weight.

81    Disruption to ATO? Mr Onyema’s second point above seeks to answer an objection raised by the ATO to a stay having the effect of requiring Mr Onyema to return to duties. Mr Silvers states that, if Mr Onyema were to be reinstated to his position as an interim measure, he could not be allowed to work with the ATO’s systems or other employees. Mr Silvers expresses concerns about the supervisory burden that would be placed on those to whom Mr Onyema would report. Mr Silvers states that, if a stay were granted, the ATO would consider suspension or miscellaneous leave (which I take to mean for the period of the stay).

82    Mr Onyema states in response that he does not seek to be returned to duties until the proceeding is determined. He only seeks to be returned to suspension with remuneration. He argues more broadly that there is no prejudice to the Respondents in granting a stay. The Respondents state that there is prejudice in the sense that, if Mr Onyema were paid until the proceeding is determined and his application is unsuccessful, then as a practical matter it is unlikely that the Commonwealth will be able to recover these amounts from Mr Onyema.

83    Conclusions – balance of convenience; stay should be refused: I accept that Mr Onyema is facing financial hardship, but there is little evidence about his current financial position and it is now a considerable period of time since his employment was terminated. The other matters raised by Mr Onyema (possible alternative measures, him accepting the results of a forensic examination) are not relevant to the balance of convenience: cf [77](c)above.

84    In that context, the decisive factor is the lack of strength in Mr Onyema’s arguments on review. As noted, the merits of his arguments and the balance of convenience are not considered in isolation from each other. Here, the balance of convenience might favour granting the stay to an extent, but that factor is comfortably outweighed by the lack of any apparent merit in Mr Onyema’s arguments. The application for a stay is therefore refused.

C.3    Other procedural matters

85    Two other procedural matters should be mentioned.

86    Leave granted to amend originating application: First, given that Mr Onyema does not require an extension of time, he should be granted leave to rely on his amended originating application. This document is much clearer than the original document filed, and in this way permitting the amendments promotes the overarching objective in s 37M of the Federal Court of Australia Act 1976 (Cth). The Respondents accepted that, if the extension of time issue was determined against them, it would be appropriate for Mr Onyema to be granted leave to rely on this amended document. The amended originating application invokes s 39B of the Judiciary Act 1903 (Cth) as well as the ADJR Act. That amendment might have more significance if an extension of time were required (because there is no fixed time limit in s 39B proceedings), but the Rules permit the two types of application to be brought in a single proceeding.

87    Naming the correct Respondent(s): The other matter is identifying the correct Respondent or Respondents. Currently, the Respondents consist of the Commonwealth (as represented by the ATO), and the individual decision-makers: Ms Bopping, Ms Hamilton (both sanctions delegate), Ms Jovanovic (breach delegate), and Ms Martin (suspension delegate). I accept the Respondents’ submission that the proper respondent in a challenge to a decision made by a delegate is not the individual person who made the decision, but the office-holder who held the statutory power that was delegated (here, the Commissioner of Taxation): see Giddings v Australian Information Commissioner [2017] FCA 677 at [5]-[7] (Tracey J), referring to Acts Interpretation Act, s 34AB(1)(c). Under s 34AB(1)(c) of the Acts Interpretation Act, the Commissioner is legally responsible for decisions made by his delegates.

88    Mr Onyema is content for the Commissioner to be substituted for the Commonwealth, but seeks to have the other individual decision-makers retained as respondents, on the basis that they are “officers of the Commonwealth” within s 39B of the Judiciary Act. It is true that the current Second to Fourth Respondents are “officers of the Commonwealth”, but that does not mean that they are appropriately joined as respondents: the analysis in Giddings is that the office-holder who held the statutory power that was delegated is legally responsible for decisions made by delegates, and is therefore the proper respondent. That analysis applies equally to judicial review proceedings under s 39B of the Judiciary Act.

D.    CONCLUSION

89    For these reasons, Mr Onyema does not require an extension of time and should be granted leave to amend his originating application, but I would not grant a stay of the Termination Decision. The parties are agreed that costs should be reserved.

Associate:

Dated:    15 October 2026

APPENDIX

Claims and grounds in proposed amended originating application

1    Breach of procedural fairness (claim 1; grounds 1-3, 11): Mr Onyema contends that there have been the following breaches of procedural fairness:

(a)    First, claim 1 contends that the Termination Decision and Breach Determination were affected by denial of procedural fairness, because the Respondents:

(i)    failed to provide Mr Onyema with a reasonable opportunity to be heard regarding critical underlying technical, audit, and investigative records;

(ii)    replaced the sanction delegate midway through the sanction consideration process without affording a fresh procedural step; and

(iii)    failed to observe procedures established under PS Act s 15(3).

(Claim 1 contends further that the sanction delegate failed to independently exercise her statutory discretion under s 15(3) of the PS Act by executing a wholesale, mechanical adoption of a preliminary view, while stating (Dismissal Notice para 15) that Mr Onyema’s technical evidence and responses were “not relevant to the sanction decision”, thereby establishing an unanswerable error of law and a closed, predetermined mind. That issue is raised under claim 2 and ground 5.)

(b)    Second, ground 1 contends that there is a reasonable apprehension of bias on the part of Third Respondent (Ms Hamilton) and the Fifth Respondent (Ms Martin), who each received the originating complaint about Mr Onyema before each acting as a decision-maker in respect of him. The particulars refer to the following:

(i)    the email chain evidencing receipt of the originating complaint by the Third and Fifth Respondents on 24 March 2025;

(ii)    the recorded desired outcome of the complainant officer, including that the matter be completed within a specified short period;

(iii)    the signing of the Notice of Suspension four days after receipt of the complaint.

(c)    Third, ground 2 contends that there was a breach of procedural fairness, because the Respondents made adverse findings in reliance on the following primary material that was never disclosed to Mr Onyema, and which he was therefore unable to test or answer. The relevant material is:

(i)    the CAL extracts in unabridged form;

(ii)    the SPLUNK logs obtained on 6 August 2025, referred to in Breach Determination para 29;

(iii)    VPN and device authentication records;

(iv)    the UA Assessment Report in its original, unamended form;

(v)    the communication from Relationships Australia Victoria, and the identity of its author; and

(vi)    any provenance or forensic analysis relied upon.

(d)    Fourth, ground 3 contends that there was a breach of procedural fairness, because the UA Assessment Report from the Fraud Unit in the ATO was transmitted to the Fourth Respondent (Ms Jovanovic) with the statement that its date had been updated so as to corroborate the CAL data. That alteration was not disclosed to Mr Onyema, and the report was relied upon as though it were an independent contemporaneous assessment.

(e)    Fifth, ground 11 contends that he was subjected to successive processes and successive suspension decisions arising from the same underlying allegations, over a period of seven months, without at any stage being provided with the primary material relied upon, and while suspended without remuneration. Mr Onyema contends that the cumulative effect was that he was required to answer a case the content of which was never disclosed to him.

2    Breach findings accepted and adopted on sanctions (claim 2, ground 5): Mr Onyema contends that the Second Respondent (Ms Bopping, the sanctions decision-maker) erred by accepting and adopting the findings of the Fourth Respondent (Ms Jovanovic, the breach decision-maker).

3    Claim 2 contends that the sanction power under s 15(1)(a) required the Second Respondent personally to reach her own state of satisfaction as to breach and as to sanction. The Termination Decision instead records that she “accepts and adopts” the findings of the Fourth Respondent. She thereby adopted another officer's conclusions in place of forming her own, and did not exercise the discretion the Act conferred on her. Ground 5 is to similar effect, and contains the following particulars:

(a)    The Termination Decision records that the Second Respondent accepts and adopts the findings of the Fourth Respondent, without independent assessment of the underlying material; and

(b)    by email of 3 October 2025 the Third Respondent recorded that she and the Fourth Respondent would ensure that the Second Respondent was provided with all of the documentation, so that the officer who made the breach finding and the officer who had formed the preliminary view in favour of termination together controlled the record placed before the sanction delegate.

4    (Ground 5 also states that the Second Respondent replaced the original sanction delegate part-way through the process and afforded Mr Onyema no fresh opportunity to be heard before her. This argument is raised under procedural fairness: see [67](a)(ii) above.)

5    Incomplete and logically unprobative technical evidence (claim 3): Mr Onyema contends in claim 3 that the adverse findings rested on incomplete and logically unprobative technical evidence.

(a)    The Fourth Respondents treated timesheet entries and historical flexible-work practices as conclusive of location without properly verifying technical records or considering less restrictive measures.

(b)    The Fourth Respondent attributed physical workstation operation exclusively to UserID access without verifying primary operating system event logs, screen lock/unlock data, or SPLUNK metadata, and failed to evaluate objective evidence of potential third-party access occurring on 8 March 2024. Mr Onyema contends that Parts 2, 3, and 10 of his primary evidence establish that the Fourth Respondent (the investigator) acted in the complete absence of logically probative evidence.

(c)    The technical records rely solely on UserID attribution to infer personal authorship while actively suppressing the primary workstation OS event logs, screen lock/unlock logs, and SPLUNK network metadata required to establish physical location. The Respondents completely failed to investigate a prominent relevant consideration, namely, an objective, time-stamped digital footprint on 8 March 2024 demonstrating that exactly 44 minutes after an adverse system access occurred, an Alfred Health Transition Letter was downloaded onto the workstation from the personal email account of a hostile ex-partner co-resident (Ms A), establishing her physical presence and device operation during that exact hour.

6    Required procedures not followed (claim 4, ground 6): Mr Onyema contends that required procedures were not followed.

(a)    Claim 4 contends that prior to and after the initial suspension he experienced repeated unpaid suspensions and procedural steps that exceeded policy limits and caused serious financial hardship; the re-imposition of unpaid suspension on 21 October 2025 and subsequent termination were unlawful because the Respondents failed to identify or justify any circumstances, failed to review the suspension appropriately in that a determination has been made, and failed to consider reasonable adjustments when he came out of detention including his medical condition. He contends that the Fifth Respondent (the suspension delegate) left him entirely unremunerated for a continuous period of 97 days, leaving him without income for 76 days beyond the strict 30-day regulatory boundary without a lawful, time-compliant determination of “exceptional circumstances” under reg 14(4) of the PS Regulations. He contends the suspension notice issued on 9 October 2025 was implemented reactively and for an improper punitive purpose during the sanction phase after a formal breach finding had already been finalized.

(b)    Ground 6 contends that there was a failure to observe the following procedures required by law:

(i)    suspension without remuneration was maintained beyond the period permitted under reg 14(4) of the PS Regulations, and was re-imposed on 21 October 2025 without identification or justification of any circumstance warranting it;

(ii)    the suspension was not reviewed in accordance with the applicable requirements of reg 14(5) of the PS Regulations following the making of the Breach Determination; and

(iii)    no instrument of delegation authorising any of the decisions under review has been produced, despite request.

Mr Onyema also contends that the procedures established under s 15(3) of the PS Act for determining breaches of the Code of Conduct were not observed, in that the substituted sanction delegate took no fresh procedural fairness step. That argument is raised under procedural fairness: see [67](a)(ii) above.

7    Failure to take account of relevant considerations (ground 7): Mr Onyema contends in ground 7 that the Respondents failed to consider material that was squarely raised and centrally relevant:

(a)    the concession of the Director of Investigations, FPII, of 13 August 2025 that the Central Audit Logs record access to ATO systems only and cannot establish what Mr Onyema was doing during periods in which no logs exist – which removes the foundation for the activity-gap inferences drawn against him;

(b)    the complainant's own account that she was present alone at Mr Onyema's residence in the evenings, coinciding with the times of several of the accesses alleged against him;

(c)    the confirmation by Mr Onyema’s manager that he had raised third-party access to his computer with her some weeks before she was contacted by the Fourth Respondent on 6 August 2025;

(d)    the fact that Mr Onyema’s manager was asked only about working-from-home arrangements, the Time Management System and system navigation, and was never asked whether there were work reasons for the accesses in question;

(e)    Mr Onyema's medical evidence from Dr Edward Oludare and the reasonable adjustments he sought following his release from custody; and

(f)    the lesser sanctions and undertakings he proposed, including restricted duties, mandatory retraining and regular audit.

8    Ground 7 also contends that the Second Respondent dismissed Mr Onyema’s additional evidence and his submissions on the Breach Determination as “not relevant to my sanction decision”, whereas (it is said) material bearing on whether the conduct occurred at all, and on its gravity, was necessarily relevant to the sanction to be imposed for it. That argument is raised under claim 2 and ground 5.

9    Termination Decision is legally unreasonable (claim 5, grounds 4, 9-10): Mr Onyema contends that the decision to terminate his employment is legally unreasonable, or otherwise illogical or irrational.

(a)    Claim 5 contends that the sanction decision was irrational and internally inconsistent and hence not one that a reasonable decision-maker could have reached given the overwhelming evidence and the Respondents failed to give adequate reasons explaining why termination was proportionate and necessary in all the circumstances. The breach decision-maker states in para 113 of the Breach Determination that she was “unable to make a finding in relation to s 13(4) of the [APS] Code [of Conduct]” due to the technical insufficiency of the partial Central Audit Log (CAL) extracts to prove an intentional breach of s 8XA of the TA Act. Mr Onyema contends that it is legally unreasonable, contradictory, and an error of law to treat the identical technical data as too weak to sustain a breach of the governing statutory law, while concurrently using that exact same evidence to justify summary termination under ss 13(5) and 13(11).

(b)    Ground 4 contends that, although the Breach Determination records that the Fourth Respondent (Ms Jovanovic) was unable to make a finding in relation to s 13(4) of the PS Act and s 8XA of the TA Act, the Termination Decision nonetheless relies upon the same conduct in support of the sanction imposed. He contends that it was an error on the face of the record for the sanctions decision-maker to rely on conduct that the breach delegate expressly declined to find established.

(c)    Ground 9 contends that the adverse findings were made without logically probative evidence, and contains the following particulars:

(i)    Based on an “updated so as to corroborate” partial audit log extract (CAL) and an assessment report without full extracts, without unique session identifiers, session and work station IDs, etc.

(ii)    the search conducted on 19 February 2025 entered a name in the middle-name field, returned a nil result, and yielded no taxpayer information. It was nonetheless treated as equivalent to access to sensitive records;

(iii)    timesheet entries and historical flexible-work practice were treated as conclusive of Mr Onyema's physical location, without verification against the technical records and notwithstanding the concession referred to at Ground 7(a);

(iv)    a finding of failure to disclose and avoid a conflict of interest was made without identification of any official duty said to be in conflict with a private interest, that identification being an element the provision requires.

(d)    Ground 10 contends that the sanction of termination was not one that could reasonably have been imposed on the material before the Second Respondent, and no evident and intelligible justification for it appears from the reasons. The particulars to this ground state:

(i)    the findings were contested and were reached without disclosure of the primary forensic material;

(ii)    Mr Onyema had an unblemished performance record of more than two years;

(iii)    he proposed lesser sanctions which were available and which the reasons do not address;

(iv)    the reasons do not explain why termination, the most severe sanction available, was proportionate or necessary; and

(v)    Mr Onyema's acknowledgement of lax security practice was treated as establishing intentional misconduct rather than as mitigation.

10    Reliance on irrelevant evidence or considerations (claim 6, ground 8): Mr Onyema contends that the decision-making processes relied on the following irrelevant evidence or considerations.

(a)    Claim 6 contends that the sanctions delegate dismissed Mr Onyema’s additional evidence and his views on the Breach Determination as “not relevant to [her] sanction decision”, which is said to constitute a failure to consider a relevant matter during the sanction process.

(b)    Claim 6 and ground 8 contend that the process proceeded throughout on the basis, first recorded in the preliminary report of 28 March 2025, that he had been charged with 34 offences relating to stalking and domestic violence. He contends that the charges actually laid were 31 counts of contravening a family violence intervention order and one count of stalking. That characterisation was never corrected in any document in the chain, and untested criminal allegations were used to infer intent for the purposes of an administrative breach finding.

11    Bad faith (ground 12): Mr Onyema contends in ground 12 that the Breach Determination was made in bad faith. He contends that the Fourth Respondent (Ms Jovanovic), in making the Breach Determination of 18 September 2025, did not make an honest and genuine attempt to perform the task required of her by the PS Act and the procedures established under s 15(3) of that Act. She instead conducted a process directed to sustaining a conclusion adverse to Mr Onyema and exercised the power for a purpose other than that for which it was conferred.

12    In addition, Mr Onyema contends that Ms Jovanovic knowingly failed to disclose or take into account a downloaded employment document and accompanying email concerning Mr Onyema’s former partner, despite having knowledge of the document and its date.

(a)    He contends that Ms Jovanovic knew of, or had access to, a downloaded employment document concerning Mr Onyema’s former partner and the accompanying email, and that during a telephone conversation, Ms Jovanovic identified or confirmed the date of that document.

(b)    Mr Onyema contends that this conversation in which Ms Jovanovic identified the date of the document; the document’s materiality to the third-party-access issue; its omission from the material relied upon; and the absence of any explanation for that omission, raise an arguable inference of deliberate non-disclosure and improper purpose, subject to the evidence at hearing.

SCHEDULE OF PARTIES