Federal Court of Australia

Dabea v Minister for Immigration and Citizenship [2026] FCA 1547

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application be dismissed.

2.    The applicant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

RAPER J:

1    The applicant, Mr Dabea, is a 68-year-old citizen of Fiji who first arrived in Australia in 1986 on a tourist visa and has lived permanently in Australia since 1997. On 9 October 2024, Mr Dabea was convicted at the Wollongong Local Court of two counts of indecent assault of a person under 16 years of age and one count of aggravated indecency where the victim was under the age of 16 and under his authority (his step-grand-daughter). He was sentenced to an aggregate term of three years’ imprisonment. As a result of those convictions on 6 May 2025 his visa was cancelled mandatorily under s 501(3A) of the Migration Act 1958 (Cth) on the basis that he did not pass the character test, had a substantial criminal record within s 501(6)(a) and was serving a sentence of imprisonment: s 501(7)(c).

2    On 6 May 2025, Mr Dabea was invited to make representations seeking revocation of the cancellation, which he did on or about 3 June 2025 pursuant to s 501CA(4) of the Act. On 2 February 2026, a delegate of the Minister for Immigration and Citizenship decided not to revoke the mandatory cancellation of his visa. Mr Dabea then applied to the Administrative Review Tribunal for review of the delegate’s decision on 11 February 2026. On 23 April 2026, the Tribunal affirmed the delegate’s decision not to revoke the mandatory cancellation of his visa: Dabea and Minister for Immigration and Citizenship (Tribunal Number 2026/0382) (23 April 2026) (Tribunal’s decision or TD).

3    Mr Dabea suffered a stroke which significantly impaired his mobility and eyesight. Mr Dabea claims that he also has cognitive impairment. These matters go to the heart of this application and that before the Tribunal. Mr Dabea accepted, as he was required to, that he could not pass the character test given his criminal record. Accordingly, the focus (for the purpose of revoking cancellation) turns to other considerations mandated, by operation of s 499 of the Act, under Ministerial Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA. Those mandatory considerations included the strength, nature and duration of ties to Australia as well as the extent of any impediment if the person is removed. In this case, as to the latter consideration, Mr Dabea put on evidence as to his age and health conditions such that he submitted to the Tribunal, that account ought to be given to his poor health, his age, that he had suffered a stroke which required “significant medical assistance” for which he would not be able to receive the same medical care in Fiji and he had no social support in Fiji or family supports to assist and support him.

4    The Tribunal hearing was on 16 April 2026. Later that day, the Tribunal sent an email to Mr Dabea and the Minister’s representatives attaching a letter with an extract from a DFAT report about the Fiji health care system. The Tribunal stated that it was its “preliminary view” that the report was “not supportive” of Mr Dabea’s submissions and invited Mr Dabea to respond by 21 April 2026. Mr Dabea did not provide a response. The Tribunal ultimately did not accept Mr Dabea’s contention that he would “not receive adequate health care in Fiji” (in that part of the Tribunal’s reasons regarding the strength, nature and duration of ties to Australia) and then went on to say that as to claimed impediments, they “somewhat” went in Mr Dabea’s favour as to revocation of the cancellation.

5    By application before this Court, Mr Dabea seeks to review the Tribunal’s decision. He challenges the Tribunal’s decision on two grounds. First, Mr Dabea contends that the Tribunal’s decision was affected by jurisdictional error because it breached s 499(2A) of the Act, by misconstruing Direction 110 and failing to perform the statutory task required of it. Secondly, Mr Dabea alleges that the Tribunal failed to afford him procedural fairness in the course of its review. Accordingly, Mr Dabea contends that the Tribunal’s decision affirming the non-revocation of the mandatory cancellation of his visa should be set aside, seeking orders in the nature of certiorari and mandamus, remitting the matter to the Tribunal for redetermination according to law, and costs.

6    For the reasons that follow, the application must be dismissed.

Statutory Framework

7    Section 501 of the Act reads as follows:

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:     Character test is defined by subsection (6).

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

8    Section 499 of the Act reads as follows:

499 Minister may give directions

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

(1A)    For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)    A person or body must comply with a direction under subsection (1).

(3)    The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

(4)    Subsection (1) does not limit subsection 496(1A).

The Tribunal’s decision

9    The Tribunal affirmed the delegate’s decision and considered the following matters relevant to this application: (a) that the protection of the Australian community weighed in favour of affirming the delegate’s decision to cancel the visa (TD[82]-[105]); (b) that Mr Dabea had engaged in conduct which constituted “family violence” which should be attributed “significant weight” in favour of the cancellation (TD[106]-[114]); (c) that the strength, nature and duration of Mr Dabea’s ties to Australia were such that they weighed “strongly in favour” of the cancellation being set aside (TD[115]-TD[121]); (d) that the expectations of the Australian community weighed strongly in favour of affirming the decision under review (TD[123]-[130]); (e) that neutral weight be afforded to the legal consequences of the decision (TD[131]-[137]); and (f) that as to the extent of other impediments if removed, this factor weighed “somewhat” in favour of setting aside cancellation (TD[138]-[142]).

10    There are three aspects of the reasons worthwhile extracting.

11    As to the strength, nature and duration of Mr Dabea’s ties to Australia being such that they weighed “strongly in favour” of the cancellation being set aside (TD[115]-TD[121]), it is apparent that the Tribunal considered Mr Dabea’s medical evidence. This is relevant to both grounds for the reasons which I will develop.

Third primary consideration: The strength, nature and duration of ties to Australia

Applicant’s contentions

115.    The applicant’s [sic] relied on the Representations. These are set out over some four pages which I will not reproduce, but they include the following factors:

•    save for four years when he returned to Fiji, the applicant has lived in Australia since 1986;

•    his Australian citizen wife and three of his Australian citizen children live here, with all of whom he has a close relationship;

•    his wife in particular wants the applicant to remain in Australia so she can support him in his health battles and vice versa;

•    close extended family also reside in Australia;

•    they will all be impacted if the applicant is removed to Fiji;

•    the applicant does not have any close family or extended support in Fiji;

•    by nature of his health problems the applicant needs daily support; and

•    the applicant will not receive the same health benefits in Fiji as he does in Australia.

Minister’s contentions

116.    The Minister the Minister [sic] accepts that this consideration weighs moderately in favour of revocation.

Consideration

117.    I do not accept the applicant’s contention that he will not receive adequate health care in Fiji, or that he will not be able to obtain his prescribed medication. After the hearing, I sent to the applicant an extract from the Department of Foreign Affairs and Trade country information report for Fiji, which is dated 8 October 2025 (DFAT Report), being pars 2.39-2.53, and are set out below. These paragraphs state:

Health

2.39    The 2013 Constitution enshrines a right to healthcare, including reproductive healthcare and emergency medical treatment. Fiji has a high burden of non-communicable diseases, accounting for more than 80 per cent of all deaths. Almost one in three Fijians are diagnosed with diabetes. Infectious disease outbreaks occur.

2.40    Most health facilities provide family planning services. Condoms and female contraceptives, including the pill and injectable contraceptives, are available. In-country sources said the use of contraceptives, particularly condoms, was low. Most live births are performed by health professionals. The maternal mortality rate is 39 per 100,000 live births. Childhood vaccination rates are consistently high. Life expectancy is 68 years (women’s life expectancy is greater than men’s).

2.41    Healthcare in Fiji is delivered through public hospitals offering tertiary and secondary care, a countrywide network of public health centres and nursing stations administering primary care and private providers, including hospitals and general practitioners (GPs). Healthcare through the public system is free or highly subsidised. Healthcare services are available countrywide. The best medical facilities are in Suva, Nadi and Lautoka. People in outer areas requiring more complex care must travel to cities. This can be inconvenient but not insurmountable.

2.42    Nursing stations, typically staffed by a single registered nurse, provide basic primary healthcare, including maternal, child health and family planning. They also provide domiciliary care for patients discharged from hospital. Nursing stations are located primarily in rural areas. At the time of writing, there were 101 nursing stations across Fiji, with a catchment population of between 100 and 5,000 each. Nursing stations refer patients to health centres, which provide comprehensive primary healthcare, including cervical cancer prevention and screening and treatment for most sexually transmitted infections.

2.43    Health centres are located in both rural and urban areas (86 at the time of writing). At a minimum, health centres are staffed by a doctor or nurse practitioner and registered nurse. The number of staff can range from two to 20, depending on the catchment population. Health centres may include a pharmacy, dietician, laboratory, x-ray department and dental unit. Health centres refer to 16 subdivisional hospitals, which provide secondary care, including inpatient and outpatient services.

2.44    Complex cases are referred to three divisional hospitals in Suva, Lautoka and Labasa. These provide tertiary and specialist care, including radiology, cardiology, oncology and renal dialysis. The Colonial War Memorial Hospital in Suva is Fiji’s national referral hospital.

2.45    There are three Suva-based specialised hospitals: St Giles, which provides psychiatric care; P.J. Twomey, for patients with tuberculosis and leprosy; and Tamavua, for patients with long-term rehabilitation care needs (e.g. patients recovering from strokes and accidents). 2.46 The public healthcare system includes community health workers, who conduct outreach, awareness-raising and follow-up at the local level, including home visits in remote areas. Medical Services Pacific, an NGO, provides free and confidential clinical and social services through clinics in Suva, Labasa and Lautoka while operating a mobile outreach service to remote communities. Its services are available to all.

2.47    Beyond some services at St Giles Hospital in Suva, the government did not provide dedicated rehabilitation services for drug users and people who were alcohol-dependent at the time of writing. In-country sources reported a standalone private clinic for drug addicts in Suva and some community-based rehabilitation services but could not speak to their effectiveness. They said opioid substitution therapy was not available.

2.48    In-country sources said Fiji’s public healthcare system was under growing strain, with deteriorating infrastructure, limited resources and workforce capability gaps, including because of low pay and labour mobility. Outbreaks of HIV, sexually transmitted infections and hepatitis C were stretching resources. Complex tender processes and stock outages meant regular shortages of basic equipment, medicines and supplies. Primary healthcare facilities were often ill-equipped and poorly staffed, placing downward pressure on public hospitals.

2.49    Conditions and care are superior and wait times shorter in the private system, although costs can be prohibitive for the average Fijian. Private hospitals provide primary, secondary and tertiary healthcare, including specialised procedures like heart bypass surgery (which costs up to AUD11,000). Private hospitals are concentrated in urban areas, mostly in the Central and Western divisions. In-country sources said those with financial means sought care through the private system (or abroad).

2.50    Some private hospitals operate general practices. Pacific Specialist Healthcare (situated in Nadi and Suva) advertises GP consultations for a fee of FJD7.50 (AUD5). There are approximately 130 private GP clinics across Fiji. Households earning less than FJD30,000 (AUD20,200) can obtain free services from participating private GPs, dentists and medical laboratories under a government-financed public-private partnership.

2.51    Most medicines prescribed in Australia can be obtained in Fiji. Some may be hard to find occasionally, including because of stock outages. Medicines for common conditions (cholesterol, high blood pressure, influenza, diabetes) are generally available and affordable. Under the Free Medicine Program, low-income Fijians, including those on a social pension, can access prescription medicines for free from government pharmacies and select retail pharmacies. There is no treatment for hepatitis C. The government reported in January 2025 over 95 per cent of the population had received two doses of a COVID-19 vaccine. See HIV for availability of HIV treatments.

2.52    According to in-country sources, hospital patients received a summary report on discharge. These reports typically included the date of and reason for admission, diagnosis, treatment received and, if necessary, required follow-up care. Discharge reports are free. Fees may apply where a patient requests a formal medical report for legal, employment, insurance or other specific purposes.

2.53    DFAT assesses there is no discrimination on ethnic, religious or other grounds in accessing healthcare.

118.    In my note to the parties, I indicated my preliminary view is that, broadly speaking, the DFAT Report is not supportive of the applicant’s claims (although I note the contents of par 2.48).

119.    I allowed the applicant a few days to make any comments, with the Minister responding if necessary.

120.    I received no further submissions from the applicant.

121.    All that said, in my view the matters relied on by the applicant are strongly in favour of the decision under review being set aside.

12    However, it is worth noting that this is not the first time that the Tribunal had considered the medical evidence of Mr Dabea, rather the Tribunal had summarised this evidence (as well as that concerning Mr Dabea’s wife at TD[59]-[68]).

13    What is evident is that the Tribunal followed the manner in which Mr Dabea had made his representations to the Delegate in his solicitor’s letter dated 3 June 2025. In that letter, at AB120, Mr Dabea framed the “impediments” in part by reference to the fact that his “close family members all reside in Australia” and that he did not have close family members in Fiji who “could provide him with ongoing assistance or support in Fiji”.

14    Thereafter, the Tribunal, after considering other matters, went on to consider the impediments for him if removed in the following way:

Other consideration - extent of impediment if removed – 9.1(b) [sic]

138.    Paragraph 9.2 of Direction 110 requires me to consider the extent of any impediments that the applicant may face if removed from Australia to “their home country”, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country). This takes into account the applicant's age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to him there.

Applicant’s contentions

139.    The applicant’s [sic] relied on the Representations. And the extent of impediments have been sufficiently stated elsewhere, and include a lack of family contact and care; possibly having nowhere to live and having few economic resources to support him in Fiji.

Minister’s contentions

140.    The Minister accepts that the applicant has given evidence of experiencing several health issues, including severe depressive symptoms and vision impairment, which developed following a stroke in 2023. The applicant has given evidence that he has concerns about accessing medical treatment in Fiji and that he would have no one to care for him. Notwithstanding these submissions, the Minister contends that there is limited evidence before the Tribunal regarding the applicant's ongoing treatment needs. Relevantly, the Minister notes that the applicant's stroke occurred before his conviction and term of imprisonment.

141.    The Minister contends that the applicant would not experience substantial language or cultural barriers in Fiji in circumstances where he left as an adult at the age of 28: paragraph 9.2(1)(b) of Direction 110. While the Minister accepts that the applicant may have difficulties finding employment and supporting himself in light of his age and health concerns, the Minister contends that the applicant would have access to the same level of economic and health support as what would generally be available to other citizens of Fiji: par9.2(1)(c) [sic] of Direction 110.

Consideration

142.    In my view, this factor weighs somewhat in setting aside the decision under review.

15    Ultimately, both parties brought the Court’s attention to the Tribunal’s conclusions at TD[149]-[153] (noting the corrigendum regarding [153]):

149.    As noted above, 7.2 of Direction 110 states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than ‘other’ considerations.

150.    I have found that the protection of the Australian community and the expectations of the Australian community weigh in favour of affirming the decision under review. Balanced against this are the strength, nature and duration of the applicant’s ties to Australia, which I have found weigh strongly in favour of setting aside the decision under review.

151.    However, in my view, this is a case where the nature of the applicant’s conduct, the subject of his three convictions, and the expectations of the Australian public, outweigh his ties to Australia.

152.    In coming to this conclusion, I note that the principles set out in Direction 110 under which I should approach my task include the following:

(1)    in some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation

(2)    certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable [sic]33 risk of causing physical harm to the Australian community.

153.    In my view, this is such a case.

Grounds of application

Ground 1

16    Ground 1 is expressed as follows:

Ground 1 — The Tribunal’s decision is affected by jurisdictional error because it breached s 499(2A) of the Migration Act 1958 (Cth), by misconstruing Direction No 110 and failing to perform its statutory task.

Particulars

(a)    Paragraph 9.2(1) of Direction No 110 required the Tribunal to consider the extent of any impediments the Applicant might face if removed to Fiji in establishing himself and maintaining basic living standards, taking into account, among other matters, his age and health and the social, medical and economic support available to him in Fiji.

(b)    The Tribunal:

I.    Reproduced, under a separate Consideration, paragraphs [2.39] – [2.53] of the DFAT Report in not accepting the applicant's contention that he will not receive adequate health care in Fiji or that he will not be able to obtain his prescribed medication: AB946 [117].

II.    Summarised parties’ contentions regarding the impediment’s consideration: AB951 [139] – [142].

III.    Reasoned, under the heading of ‘Consideration’ at AB951 [142]: “In my view, this factor weighs somewhat in setting aside the decision under review” (sic).

(c)    The Tribunal’s purported consideration at AB951 [142]:

I.    does not identify which factors informed the weighting of the consideration;

II.    failed to meaningfully evaluate the applicant’s representations and circumstances; and/or

III.    did not engage with the applicant’s medical needs as the Tribunal had previously referred to in recognising that Dr Venhat described the applicant’s stroke as "disabling" and indicated that he required ongoing care, "both from [the] cognitive side of things, as well as [the] psychological side of things”, or reconcile this issue with DFAT’s report that Fiji's public healthcare system was "under growing strain, with deteriorating infrastructure, limited resources and workforce capability gaps": AB930 [65], AB951 [142].

(d)    In the premises, the Tribunal:

I.    failed to perform the evaluative assessment required to properly consider all relevant mandatory considerations prescribed by the Direction; or

II.    discharge its obligation to set out reasons that refer to the evidence or other material on which its findings were based.

(e)    The error was material because there is a realistic possibility that proper engagement with the impediments if removed consideration could have resulted in a different outcome.

17    There was no dispute between the parties that, when exercising the power under s 501CA(4)(b)(ii) of the Act, the Tribunal is required to comply with directions made by the Minister under s 499 of the Act: FHHM v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 19 at [6]-[7] (O’Callaghan and Colvin JJ, with Derrington J agreeing at [55]); Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 816 at [26].

18    At the heart of ground 1, is what para 9.2 of Direction 110 demands of the decision-maker. Para 9.2 provides:

9.2.    Extent of impediments if removed

(1)    Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)    the non-citizen's age and health;

b)    whether there are substantial language or cultural barriers; and

c)    any social, medical and/or economic support available to them in that country.

19    As is apparent from the extracted portions of the Tribunal’s reasons, the Tribunal considered Mr Dabea’s claims regarding his health and the possible impediments arising from his potential removal in different parts of the decision. Counsel for Mr Dabea conceded correctly at hearing that, when construing the Tribunal’s reasons, the Court must consider the content of the Tribunal’s reasons as a whole, and not assume, by reason of the submission or evidence being dealt with in another part of the decision, that the Tribunal will have failed to consider it in another part of the decision. However, Mr Dabea submitted that the Tribunal failed, as required by para 9.2, to first evaluate (that is engage with Mr Dabea’s circumstances and evidence regarding his medical conditions) and determine the nature and extent of the impediments he would face if removed and then, secondly, to determine the significance of those impediments in the overall exercise required by s 501CA(4) of the Act, citing ECE21 v Minister for Home Affairs [2023] FCAFC 52; 297 FCR 422 at [7]. It was submitted that, whilst the Tribunal formed a view at TD[117] that it did not accept Mr Dabea’s contention that he would not receive adequate health care in Fiji, when it came to the consideration of the possible impediments later in the reasoning, the Tribunal “skipped” the first step requiring evaluation and assessment. It was submitted that an apparent tension (referred to at TD[118]) was not resolved and was required. Thereafter, it was submitted that the Tribunal “jumped” to its conclusion at TD[142] without engaging (and therefore evaluating) the relevant facts.

20    It was submitted that a decision-maker must “read, identify, understand and evaluate the representations” made: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [24]. It was submitted that the Tribunal did not do this. As a consequence, it was submitted that in effect, Mr Dabea was “left to guess” what role, if any, the contention played in the exercise of discretion, citing amongst other cases Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; 112 ALD 1 at [49] and Puru v Minister for Immigration and Citizenship [2026] FCA 937 at [70].

21    It may be accepted that the Tribunal was required to consider (namely adverting to and understanding) the representations made by an applicant and then consider the same representations, in the sense of evaluating their significance, as the Full Court has described in ECE21 at [7].

22    However, as adverted to above, it is my view that when the Tribunal’s decision is read as a whole, and in the context of how the representations were crafted by Mr Dabea and the evidence was led, that this is what, albeit briefly, the Tribunal did.

23    I return to what I noted at the outset. The Tribunal considered, at TD[59]-[68], the medical evidence of Mr Dabea and his wife together. The grouping of this evidence at an early stage in the decision is understandable because the representations about these two strands of evidence were intertwined. As previously stated, Mr Dabea had made his representations to the delegate in his solicitor’s letter dated 3 June 2025, at AB120 and following. Mr Dabea relied upon those same representations before the Tribunal. Mr Dabea had, through his solicitors, framed the “impediments” in part by reference to the fact that his “close family members all reside in Australia” and that he did not have close family members in Fiji “who could provide him with ongoing assistance or support in Fiji”. Further, the facts and evidence underpinning the representations regarding the para 9.2 (impediments) and the para 8.3 (strength, nature and duration of ties) overlapped, as evident from the Tribunal’s summary of the representations, at TD[115]. The strength and nature of the familial ties (including as between Mr and Ms Dabea) were relevant to both considerations because of the fact that, without them, the health care of them both would be compromised.

24    It is not the case that the Tribunal did not consider (by failing to advert to or understand) the representations. The task on judicial review is to read the reasons fairly and as a whole: see EGH19 v Minister for Immigration and Citizenship [2026] HCA 33 at [68] (Gordon, Steward and Gleeson JJ). As is apparent from the above, the Tribunal first adverted to and understood the medical evidence. The Tribunal referred, in a number of places, to the fact that Mr Dabea had suffered a stroke in 2023 which had affected him in a number of respects: TD[12], [29], [49], [59]-[68].

25    Secondly, the Tribunal identified (in summary form) the nature of the representations about this evidence as relevant to the primary considerations, at TD[115]. The Tribunal referred to Mr Dabea’s family and life being in Australia, including that he has no one to care for him in Fiji and his wife has diabetes and high blood pressure: TD[26]-[30], [50], [54], [55], [56].

26    Further, apart from Mr Dabea’s contention that he would not receive “adequate health care in Fiji” (noting that para 9.2 required the Tribunal to consider “what is generally available to other citizens of” Fiji rather than a comparative analysis being conducted between the care in Australia and the receiving country), the Tribunal said nothing to indicate it did not accept the other impediments claimed by Mr Dabea: TD[117].

27    Further, whilst the Tribunal’s reasons were brief, when dealing with the impediments consideration, at TD[138]-[142], the Tribunal at TD[138], identified what para 9.2 of Direction 110 demanded of it. The Tribunal then, by reference to earlier parts of its reasons, referred to the “Representations” which clearly, at TD[115], refer to the relevant claims underpinning this consideration. There was no claim by Mr Dabea that the Tribunal did not know or failed to refer to the relevant representations. The Tribunal then referred to the Minister’s contentions, and apparently interspersed with this, Mr Dabea’s evidence. It can be inferred that the Tribunal, referred first to the para 9.2(1)(a) consideration (at TD[139]) and in the earlier aspects of the Tribunal’s decision, and thereafter to the para 9.2(1)(b) and para 9.2(1)(c) contentions of the Minister.

28    As referred to by the Full Court in Ulan Coal Mines Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2025] FCAFC 127; 311 FCR 352:

[41]    The necessary “restraint” in the conduct of judicial review involves both a reading of the reasons under challenge as a whole, considered fairly and without the use of a fine appellate tooth comb: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 291 per Kirby J.

[42]    The rationale for reading reasons as a whole includes the presumption that decision-makers ordinarily review the whole of the evidence and consider all of the issues before they write, such that this must be taken into account when reading the reasons and therefore passages of the decision sought to be impugned should not be read in isolation: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; 100 NSWLR 578 at [76] per Bell P.

[43]    An inference ought not be too readily drawn that a Tribunal failed to consider an issue where the reasons are otherwise comprehensive and the issue has been identified at some point. Consideration must be given to whether it was unnecessary to make a finding on a particular matter because it was subsumed in findings of greater generality or there was a factual premise upon which the contention was based which has been rejected: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 256 FCR 593 at [47].

[44]    However, the Court must not “fill in gaps in the path of reasoning”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64; 297 FCR 1 at [61].

29    Whilst it is the case that the Tribunal did not repeat the earlier representations nor the evidence, the Tribunal’s reasons must be read as a whole and an inference not too readily drawn that the Tribunal did not undertake the evaluative task. The structure of the reasons does not support a conclusion that Tribunal had forgotten or overlooked the substance of what it stated elsewhere in its reasons: EGH19 at [68] referring to Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 280 CLR 286 at [50] (Gageler CJ; Gordon, Edelman, Gleeson and Jagot JJ). Here, it is apparent, that save for the issue identified by the Tribunal at TD[117], the Tribunal accepted Mr Dabea’s evidence and representations. Accordingly, I do not accept that it was necessary for the Tribunal to go further.

30    For these reasons, ground 1 is not made out.

Ground 2

31    Ground 2 is in the following terms:

Ground 2 - The Tribunal failed to afford the Applicant procedural fairness

Particulars

(a)    After the hearing, the Tribunal sent to the Applicant an extract of the DFAT Report, comprising paragraphs 2.39–2.53: AB944 [117]. In correspondence, the Tribunal indicated that its preliminary view was that the DFAT Report was “not supportive of the applicant’s claims” and allowed the Applicant “a few days” to make any comments, with the Minister responding if necessary: AB944 [117].

(b)    The Tribunal relied upon the DFAT Report adversely in its decision: AB944 [117].

(c)    The error was material as there is a realistic possibility that, had the Applicant been afforded a genuine opportunity to address the DFAT Report before the Tribunal made its decision, the Tribunal could have reached a different conclusion: Nathanson v Minister for Home Affairs [2022] HCA 26 at [1], [33].

32    As can be seen from the summary of the procedural history of the Tribunal hearing at the beginning of these reasons, after the hearing on 16 April 2026, the Tribunal wrote to the parties providing an extract from a DFAT Report regarding the health services provided in Fiji, indicating the Tribunal’s preliminary view that the DFAT Report was “not supportive of the applicant’s claims” and providing Mr Dabea until 4:30 pm on Tuesday 21 April 2026 to provide any submission. Mr Dabea did not do so.

33    As a consequence, Mr Dabea submitted that he was deprived of a fair, practical and meaningful opportunity to be heard with respect to the preliminary view of the Tribunal and as to what was contained in the DFAT Report, which was relevant to the impediments Mr Dabea would face if he was removed from Australia. The error was submitted to be the procedure adopted by the Tribunal after the hearing, noting that the Tribunal did not put Mr Dabea on notice at the hearing that this email would be sent, nor of its views, in circumstances where Mr Dabea was unrepresented, was cognitively impaired and detained. Rather, it was submitted that the “right course of action” was to telephone him or contact the Detention Centre asking them to bring it to his attention or to convene a short further hearing.

34    As recently stated by the Full Court in Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 102 (Rangiah, Jackson and Meagher JJ):

[55]    Procedural fairness requires that each party be given a reasonable opportunity to present their case and answer the case made against them: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ); Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J). What will constitute a reasonable opportunity depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 552-553; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26].

35    As to the whole of the circumstances, Mr Dabea submitted the following:

(1)    Mr Dabea was self-represented throughout the review;

(2)    on the Tribunal's own findings, Mr Dabea’s stroke was described by Dr Venkat as “disabling” and requiring ongoing cognitive and psychological care: TD [65];

(3)    Mr Dabea’s own evidence, accepted by the Tribunal without contrary finding, was of short-term memory and impaired vision: TD [29];

(4)    the material disclosed was a lengthy, technical extract of country information; and

(5)    the Tribunal formed an adverse view of the DFAT Report's overall import before Mr Dabea was given any opportunity to respond.

36    Mr Dabea relied upon the following sworn evidence at the hearing:

1.    I am the Applicant in the proceedings.

2.    The Tribunal did not indicate it was going to send me any correspondence after the hearing.

3.    I have never been given a copy of the DFAT report prior to receiving the ART’s decision.

4.    I received an email from the Tribunal, but I did not understand its contents.

5.    The matters set out above accurately reflect my recollection of the Tribunal hearing and the events following the hearing.

37    As is apparent from the above, the evidence is ambiguous. It does not say “when” Mr Dabea became aware of the Tribunal’s email (and attached letter). When cross-examined, Mr Dabea accepted that it was some time around the hearing but, given the decision was delivered shortly after that time, it was not clear whether Mr Dabea became aware of it before or after the decision was handed down.

38    However, I note the following additional relevant matters. The evidence established the following: (a) that Mr Dabea was sent the email (and the attached letter) from the Tribunal; (b) that Mr Dabea participated in the Tribunal hearing, primarily in English, and used an interpreter from time to time; (c) that Mr Dabea described himself as being able to read and speak English quite well; (d) that Mr Dabea read the email and letter but could not “understand” or decipher parts of the documents; and (e) that Mr Dabea understood from the email that he could have asked the Tribunal for help (in understanding it) but that he “did not want to ask questions” about it.

39    As to when Mr Dabea read the email and letter, it was Mr Dabea’s evidence that he could not say when he read it and whether it was before or after the Tribunal handed down its decision. However, it appears likely from Mr Dabea’s evidence (regarding him reading the email and letter) and him saying that he “did not want to ask questions” about it, that he would have read it before the decision was handed down. Regardless, I do not need to determine this.

40    It is my view that the Tribunal did not deprive Mr Dabea of a “meaningful opportunity” to engage with it. It was sent to his email address. I do not accept that the evidence establishes that his cognitive abilities impeded him to such an extent as to deprive him of the ability to understand that the Tribunal was asking him for a response. His evidence was, in effect, that he understood this (when he read it) and he knew he could ask for assistance and chose not to avail himself of it.

41    I accept the Minister’s submission that, given he was representing himself and had provided an email address to be contacted, the Tribunal was not required to “telephone him” or otherwise reconvene the hearing.

42    It is for a litigant, including one unrepresented, to respond to communications received. It may be that, by reason of him being in detention, there were additional impediments to receipt of such a communication, and the requirement for a relatively quick response. However, Mr Dabea put on no evidence as to when in fact he read the email nor that by reason of him being in detention, there were constraints on his access to communications from the Tribunal, or on his ability to respond.

43    Further, I accept that the DFAT information was not a ‘critical issue’ in the sense discussed in cases like SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152. On the face of the reasons, that information only led the Tribunal to reject Mr Dabea’s contention that “he will not receive adequate health care in Fiji, or that he will not be able to obtain his prescribed medication”. Despite this rejection, the Tribunal went on to determine that Mr Dabea’s ties to Australia weighed “strongly in favour” of setting aside the non-revocation decision (at TD[121]) and the impediments he faced if removed weighed “somewhat” in his favour (TD[142]).

44    For these reasons, ground 2 must fail.

Conclusion

45    For these reasons the application must fail and costs follow the event.

Associate:

Dated:    20 October 2026