Plaintiff S32/2026 v Minister for Immigration and Citizenship
High Court of Australia · 2026
Plaintiff S32/2026 v Minister for Immigration and Citizenship [2026] HCA 27
A visa applicant skipped his Tribunal hearing, then went straight to the High Court to attack the original refusal as he faced removal. The Court looked at what he had not done first.
What happened?
The plaintiff was born in Nepal in 2001 and arrived in Australia on a student visa in or around February 2022. In 2024 he was convicted of 14 counts of dishonestly obtaining financial advantage by deception, relating to conduct targeting members of the Nepali community in Australia, and he has been in immigration detention since mid-2025 ([1]). He applied for a protection visa on 12 August 2025, and a delegate refused it on 24 November 2025 ("the Visa Decision") ([2]). The delegate accepted that he would suffer significant harm from people to whom he owed money, but found that he could obtain protection from an authority in Nepal ([7]-[8]).
He applied to the Administrative Review Tribunal for merits review, and the hearing was listed for 5 February 2026 ([9]). He did not appear. The Tribunal dismissed his application on 9 February 2026 for non-appearance ("the Dismissal Decision") ([2], [11]). He asked the Tribunal to reinstate it, and on 11 March 2026 the Tribunal published a decision confirming the dismissal ("the Confirmation Decision"), finding in the course of its reasons that he had misled it and was seeking to delay his hearing without a valid reason ([12]).
On 14 April 2026 he was issued with a notice of intention to remove him, specifying an anticipated removal date of 21 April 2026 ([12]). On 20 April 2026 he filed in the High Court an application for a constitutional or other writ directed at the Visa Decision, seeking prohibition and mandamus, and needing an extension of time under s 486A of the Migration Act 1958 (Cth) ([3]). The Court made interim orders restraining his removal ([13]). He contended that the delegate had failed to consider the Department of Foreign Affairs and Trade's 2024 country report on Nepal, and had reasoned illogically, irrationally or unreasonably in finding that he could obtain protection there ([4]).
What did the Court decide?
The application was refused and dismissed with costs, and the extension of time was not granted ([5], [30]-[31]). The order was made on the joint reasons' own account of the plaintiff's application, which is set out below.
Proposition
What is the principle?
The joint reasons rested the abuse of process on four features ([18]-[20]). The plaintiff could have sought judicial review of the Confirmation Decision in the Federal Circuit and Family Court of Australia (Division 2), and if he had succeeded the matter would have returned to the Tribunal for a further merits review of the Visa Decision. The Migration Act provides a scheme of merits review of the Visa Decision in the Tribunal, not judicial review of it in that court or the Federal Court. He had not participated in the Tribunal hearing, and the Tribunal had rejected his reasons for that ([10]-[11], [19]). And at no time had he challenged either Tribunal decision for jurisdictional error ([19]).
In those circumstances the Court held that any application for merits review, judicial review or appeal should progress "through the hierarchy of tribunals and courts", words it took from San Bao ([20], fn 16). That was so even though the decision he could ask the lower court to review was the Confirmation Decision and not the Visa Decision. The joint reasons said that he "should not be permitted to circumvent the hierarchy of review provided for by the Migration Act" ([20]).
The Court accepted that he filed after being served with a notice of intention to remove him ([18]), and recorded as common ground that the Federal Circuit and Family Court has no jurisdiction in relation to the Visa Decision itself because it is a "primary decision" for the purposes of s 476(2)(a) ([5]).
The Court also held, in the alternative, that the Visa Decision was not affected by jurisdictional error: the delegate had referred to the 2024 report, and the personal circumstances of the plaintiff, not the passage about urban police, were critical to the finding ([24]-[28]).
Why does this case matter?
The judgment is short and fact-driven, and it is an easy source of overstatement. Students tend to quote it as though it settled when the original jurisdiction may be used, when it disposes of one application on its own procedural history.
A problem that changes the history, for example a plaintiff who did take part in the Tribunal, or one with no later decision open to challenge in a lower court, calls for fresh analysis of those facts rather than an assumed result.
The reasons were released subject to formal revision before publication in the Commonwealth Law Reports, so paragraph numbers may move when they are reported.
Exam and application relevance
Set out the procedural history in order: the primary decision, the review sought or not sought, the reasons for any non-participation, and what remained available at the time the High Court was approached. Then say which of those steps the Court relied on at [18]-[20].
Keep the two parts of the outcome apart in an answer: the abuse of process holding and the alternative holding on jurisdictional error rest on different reasoning ([5], [30]).
Check your understanding
1. The plaintiff's writ application was directed at the Visa Decision. Which decision could he have asked the Federal Circuit and Family Court (Division 2) to review, and what would success there have given him ([18]-[20])?
2. What had the plaintiff done, and not done, in the Tribunal and in challenging the Tribunal's decisions, according to the joint reasons ([19])?
3. The Court recorded two matters at [5] and [18] concerning the Federal Circuit and Family Court and the notice of intention to remove. What were they, and did either change the result ([5], [18]-[20])?
4. What did the Court decide in the alternative about jurisdictional error, and how did it use that finding in refusing the extension of time ([24]-[30])?