Federal Court of Australia

DBKX v Minister for Immigration and Multicultural Affairs [2026] FCAFC 85

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    This is an appeal from a decision of the primary judge to dismiss an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. That decision is published as DBKX v Minister for Immigration and Multicultural Affairs [2025] FCA 700 (primary judgment or PJ).

2    On 4 April 2023, the Tribunal affirmed a decision by a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse to grant the appellant a protection (Class XA) (Subclass 866) visa on the basis that he had been convicted of a particularly serious crime and was a danger to the Australian community: Migration Act 1958 (Cth) s 36(1C)(b).

3    While articulated in different ways in the grounds of appeal, the central issue that arises on appeal concerns whether the primary judge erred in finding that the Tribunal’s decision was not affected by jurisdictional error on the basis that the Tribunal was not required to consider, or make further inquiries into, the accommodation and treatment options that may have been available to the appellant if granted a protection visa.

4    For the following reasons, the appeal is to be dismissed.

background

5    The relevant factual background is set out at [4]–[15] of the primary judgment. The appellant is a citizen of Sudan who arrived in Australia in 2006 on a refugee (Class XB) (Subclass 200) visa. He has a history of mental health issues, including diagnoses of schizophrenia and drug abuse disorder, and has been admitted to hospital on multiple occasions to receive treatment for his mental health. He also has a criminal history.

6    On 21 November 2018, the appellant’s refugee visa was cancelled under s 501(3A) of the Migration Act. A delegate of the Minister refused to revoke the mandatory cancellation and the Tribunal (differently constituted) affirmed that decision. On 27 October 2020, the appellant applied for a protection visa which was refused by a delegate of the Minister on the basis that the appellant did not satisfy the criterion in s 36(1C)(b) of the Migration Act.

7    On 17 June 2022, the appellant applied to the Tribunal for a review of the delegate’s decision. He was unrepresented before the Tribunal. On 4 April 2023, the Tribunal affirmed the delegate’s decision.

8    The appellant was released from immigration detention following the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 and has been living on the streets and in custody in Victorian law enforcement facilities. At the time of the appeal, the appellant’s whereabouts were unknown, although he was not in custody.

9    The appellant was represented by pro bono counsel in this Court both at first instance and on appeal.

statutory context

10    Section 36 of the Migration Act sets out the eligibility criteria for a protection visa. This appeal concerns the criterion in s 36(1C)(b) of the Migration Act, which provides:

(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a) ...

(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note: For paragraph (b), see section 5M.

11    It was not in contention that the appellant has been convicted of a “particularly serious crime” as defined in s 5M of the Migration Act. If the Minister is not satisfied that the criteria for the grant of a protection visa have been satisfied, the Minister is to refuse to grant the visa: Migration Act s 65(1)(b).

12    The issue on appeal is whether the primary judge correctly concluded that the appellant had not established jurisdictional error sufficient to impugn the Tribunal’s determination that the appellant “is a danger to the Australian community” within the meaning of s 36(1C)(b).

grounds of appeal

13    The amended notice of appeal raises three grounds of appeal that largely replicate the grounds of review before the primary judge. For convenience, we will differentiate the grounds before the primary judge and on appeal by referring to them as review grounds or appeal grounds respectively.

14    By appeal ground 1, the appellant contends that the primary judge erred in finding that the Tribunal did not fall into jurisdictional error by failing to consider:

(1)    the kinds of community accommodation and support that may have been available to the appellant were he granted a protection visa (appeal ground 1(b)); and/or

(2)    whether the appellant might have become an inpatient for treatment of his mental health, as a voluntary or an involuntary patient under the Mental Health Act 2014 (Vic) (now repealed) (appeal ground 1(c)).

15    By appeal ground 2(a), the appellant contends that the primary judge erred in not finding jurisdictional error by the Tribunal failing to exercise its powers under ss 40A or 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (now repealed) and s 56 of the Migration Act to seek and get further information about the possibilities of accommodation for the appellant if he were granted a protection visa.

16    By appeal ground 3(a), the appellant contends that the primary judge erred in not finding that the Tribunal was legally unreasonable in making its finding under s 36(1C)(b) without seeking or having further information about the prospect of accommodation for the appellant if he were granted a protection visa.

17    Appeal ground 1(a) — that there was error in the primary judge’s finding that the Tribunal did not err in failing to consider whether to get additional information about possibilities of accommodation — was abandoned. Appeal ground 2(b) was directed to the Tribunal’s assumption, shown later in NZYQ to be incorrect, that the refusal of a protection visa would result in the appellant’s indefinite detention, thereby affecting the Tribunal’s evaluation of whether the appellant was a danger to the community if granted a protection visa. That appeal ground was also abandoned. There was also a review ground 3(b) before the primary judge directed to the same issue, but that ground was not pursued on appeal.

tribunal’s reasons

18    When considering whether the appellant was a danger to the Australian community for the purposes of the eligibility criterion in s 36(1C)(b), the Tribunal relevantly considered the following matters.

19    In relation to accommodation options in the community, the appellant said that he “was unsure about where he would live in the community if he were released from immigration detention and alternately referred to the suburb where he used to live and another area”: TR [47]. He also said that “he does not know anyone in the community who he could live with as he has ‘no family members’ and ‘no friends’ but thought that ‘people in the Australian system’, such as ‘community services’, would arrange housing and support for him”: TR [47].

20    In relation to his plans to treat his mental health, the appellant alternately said “that he would go to a clinic he had attended prior to being jailed in August 2018 for assistance or that he did not require medical help”, and “referred to a case worker at the clinic he used to attend but said he has had no contact with either the case worker or the clinic since being imprisoned in August 2018”: TR [46]–[47].

21    The Tribunal referred to comments made by the appellant’s lawyer in proceedings before the Melbourne Magistrate’s Court on 30 August 2018 that the appellant “had been subject to ‘14 community treatment orders in recent years’ and, although ‘chronically unwell’, he was not considered ‘sufficiently unwell to warrant the making of an inpatient assessment order”’: TR [54].

22    The Tribunal then referred to the Magistrate’s sentencing remarks that the appellant’s offending “was due to ‘drugs in combination with his mental health’” and that (at TR [55], emphasis added):

it’s sad that there isn’t some place where he can happily go that removes him from the situation where he gets free board and accommodation, where he gets – if we had a system that prescribed what he needs readily.

23    The Tribunal also referred to the earlier decision of a differently constituted Tribunal that decided not to revoke the mandatory cancellation of the appellant’s refugee visa, outlining “the factors that contributed to his criminal offending as his drug and alcohol abuse, mental health and lack of stable accommodation”: TR [56] (emphasis added).

24    In addressing the appellant’s prospects of rehabilitation, the Tribunal stated (at TR [59], emphasis added):

The evidence before the Tribunal shows the factors that have contributed to the [appellant’s] offending have included his non-compliance with treatment for schizophrenia, his use of illicit drugs and alcohol, homelessness and food insecurity. I accept that, in the period since August 2018 when the [appellant] has been in prison and immigration detention, the [appellant] has not used drugs or alcohol, and has taken his medication for schizophrenia.

25    In reaching its conclusion that the appellant presented a serious and significant risk of harming individuals in the Australian community, the Tribunal made the following findings (at TR [64] and [68]–[70], emphasis added):

Unfortunately, it appears that the [appellant] – when not in a structured environment such as prison or hospital – ceases to take medication for his diagnosed schizophrenia, which leads to a cycle of illicit drug use and criminal offending.

…

I consider it is more likely than not that he would stop taking medication for his diagnosed schizophrenia and resume taking drugs and alcohol outside the structured environment of a hospital/prison/detention centre.

I note the [appellant’s] evidence that he has no family members or friends and knows no one in the Australian community who could provide him with support such as housing and food. I share the view set out in the Magistrate’s sentencing remarks on 30 August 2018 that the [appellant] requires a safe place where he can receive medical care for his mental health, and free board and accommodation. However, I also note that the [appellant] has been the subject of 14 community treatment orders in the past that he has not complied with.

In these circumstances, I find it extremely likely that the [appellant] will relapse into criminal behaviour if he is released into the Australian community.

26    It has already been noted that the appellant was unrepresented before the Tribunal. One consequence noted by the Tribunal was that (at TR [43]):

[T]he [appellant] consistently referred to notes he had handwritten in a book that he read out in answer to questions. Unfortunately, this meant [the appellant’s] answers did not always correspond to the questions he was asked.

primary judgment

Review grounds 1(b) and (c)

27    In relation to review grounds 1(b) and (c), the primary judge noted that counsel for the appellant had “provided examples of material that may have been found by the Tribunal had it made inquiries”: PJ [28]. That material was a brochure entitled “Salvation Army Housing 2022-2023 Annual Report”. The primary judge noted that Salvation Army Housing provides homes for individuals and families at risk of homelessness and that the brochure recorded “that the Salvation Army was successful in tendering for Housing Support Services for Court Services Victoria”: PJ [28].

28    In relation to the appellant’s risk of substance abuse, the appellant had also contended before the primary judge that the fact that the appellant had not used drugs or alcohol, and had taken medication for schizophrenia, whilst in prison and immigration since August 2018, “may itself have been a basis to consider that his likelihood of reverting to drugs or alcohol may be diminished, and thereby his risk of acting in a way dangerous to the Australian community may also be diminished”: PJ [29].

29    In addressing review grounds (1)(b) and (c), the primary judge summarised the legal principles as follows (at PJ [32]):

The Tribunal was required to deal with the case raised by the material or evidence before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58] (Black CJ, French and Selway JJ) citing Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; 106 FCR 157 at [114] (Merkel J). The “case” raised may not be limited to the case articulated by an applicant if the evidence and material accepted by the Tribunal raises a case not articulated. The Tribunal is not obliged to deal with claims that are not articulated, and that do not clearly arise from the materials before it: NABE at [60]. A claim not expressly advanced must be apparent on the face of the material before the Tribunal and not depend on being exposed by constructive or creative activity by the Tribunal: NABE at [58].

30    In response to the allegation that the Tribunal failed to consider whether to obtain additional information about possible accommodation (that is, review ground 1(a) abandoned on appeal), and what kind of accommodation may have been available (that is, review ground 1(b)), the primary judge said that such contentions were not supported (at PJ [33]):

The evidence accepted by the Tribunal in this case was that the [appellant’s] offending was contributed to by factors extending beyond homelessness and food insecurity (TR [59]). The evidence accepted by the Tribunal was that when not in a structured environment such as prison or hospital, the [appellant] ceased to take medication for his diagnosed schizophrenia, which led to a cycle of illicit drug use and criminal offending (TR [64]). The [appellant] had not complied with 14 community treatment orders (TR [69]). The availability of possible “community accommodation” at large was not a critical fact or a claim clearly emerging from the material. The Tribunal was not required to engage in creative activity to construct a case for the [appellant].

31    In relation to the allegation that the Tribunal failed to consider whether the appellant might become an inpatient for treatment of his mental health (whether on a voluntary or an involuntary basis) under the Mental Health Act (that is, review ground 1(c)), the primary judge said (at PJ [34]–[35]):

[T]he Tribunal having accepted evidence that the [appellant] had not complied with 14 community treatment orders, it cannot be said that a claim that the [appellant] might voluntarily become an inpatient for treatment of his mental health issues could be said to clearly emerge from the materials before the Tribunal. Much less was it clear from the face of the material before the Tribunal that the [appellant] was making a claim that involved him being involuntarily made an inpatient for treatment of his mental health issues. The contention set out at [27(c)] is not accepted.

The contention that the Tribunal failed to consider whether the fact that “in the period since August 2018, when the [appellant] has been in prison and immigration detention, the [appellant] has not used drugs or alcohol, and has taken his medication for schizophrenia” may itself have been a basis to consider that his likelihood of reverting to drugs or alcohol may be diminished is not supported by the Tribunal’s reasons. The Tribunal acknowledged (at TR [59]) that whilst in prison and immigration detention, the [appellant] had not used drugs or alcohol and had taken his medication. The Tribunal found that it was more likely than not that the [appellant] would cease taking medication for his diagnosed schizophrenia and resume taking drugs and alcohol outside of the structured environment of a hospital, prison or detention centre (TR [68]) based on the history of the [appellant’s] conduct (TR [64]).     

Review ground 2(a)

32    In response to review ground 2(a), the primary judge held that, on the basis of the principles identified at [32] in her Honour’s reasons and set out at [29] above, “the Tribunal had no legal obligation to obtain further information about possibilities of accommodation for the [appellant]”: PJ [38].

Review ground 3(a)

33     The primary judge set out the relevant, uncontroversial principles as follows (at PJ [56]–[58]):

(1)    the Tribunal was required to exercise its review function in a legally reasonable manner, and legal unreasonableness “is not confined to why a statutory decision is made, but extends to how it is made” (citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [91] (Gageler J));

(2)    “[t]here may be circumstances where a failure to exercise power to obtain further information can amount to legal unreasonableness” (citing ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [20] (Kiefel CJ, Bell, Gageler and Keane JJ)); and

(3)    in making a determination of legal unreasonableness, “it is necessary to consider the facts and the matters falling for consideration in the exercise of the statutory power” (citing Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26]–[27] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ)).

34    Having done so, the primary judge rejected review ground 3(a) in the following terms (at PJ [59]):

The Tribunal was required to consider on reasonable grounds whether the [appellant] is a danger to the Australian community. It had found as a fact that when not in a structured environment such as prison or hospital, the [appellant] ceased to take his medication, which led to a cycle of illicit drug use and criminal offending (TR [64]). In view of that factual finding and as explained above, it cannot be said that the failure by the Tribunal to seek information about accommodation options for the [appellant] if he were granted a protection visa amounted to legal unreasonableness.

consideration

Appeal ground 1

35    Appeal grounds 1(b) and (c) can be considered together.

36    Counsel for the appellant submitted that the Tribunal had accepted that the appellant’s homelessness, food insecurity, drug abuse and mental health had contributed to the appellant’s offending and that, in a “structured environment”, such as a prison, immigration detention or hospital, the appellant had not used drugs or alcohol and had taken his medication.

37    Given (a) the matters referred to by the Tribunal, including the Magistrate’s sentencing remarks; and (b) the fact that the appellant was unrepresented before the Tribunal and struggled to advance a case, it was contended that the appellant’s mental health and basic needs for food and shelter were questions raised squarely for the Tribunal to consider and it should have made some inquiry (albeit not exhaustive) about available accommodation possibilities. It was submitted that there was information available, for example, about the accommodation provided by the Salvation Army. Accordingly, it was submitted, the Tribunal erred by not considering what kinds of community accommodation and support might be available to the appellant if he were granted a protection visa, and such error was material (appeal ground 1(b)).

38    It was also submitted that the appellant’s mental health, which had been found by the Tribunal to contribute to his offending, raised squarely the question of whether the appellant might become an inpatient under the Mental Health Act. The primary judge noted (PJ [33]–[34]) that the Tribunal had found (TR [69]) that the appellant had not complied with 14 community treatment orders in the past. Nonetheless, the appellant’s claim was that the material before the Tribunal raised the possibility of an involuntary treatment order. It was contended that the failure by the Tribunal to consider that possibility constituted an error that was material (appeal ground 1(c)).

39    In relation to appeal ground 1(b), the appellant’s submissions assume too much from the Tribunal’s reasons. The evidence accepted by the Tribunal was that a prison or an immigration detention centre had provided the appellant in the past with the conditions under which the risk factors contributing to his offending (alcohol use, illicit drugs and the failure to take prescription medication) were controlled. The finding was that outside the “structured environment” of a prison, detention centre or hospital, it was more likely that those risk factors would materialise.

40    It was not evident on the material before the Tribunal that there were other housing options that would have provided the necessary structured setting to address the appellant’s risk factors. Necessarily, such an environment would need to be characterised by enforceable constraints on the liberty of the individual to control risk factors. It is not evident that the housing options provided by community providers, like the Salvation Army, would provide such a structured setting.

41    Accordingly, we agree with the primary judge’s conclusion that the possibility of community accommodation or support were not matters that were apparent on the face of the material before the Tribunal: see NABE at [58].

42    While inpatient treatment orders might provide a structured setting, it was quite plainly stated on behalf of the appellant before the Melbourne Magistrate’s Court on 30 August 2018 that although “chronically unwell”, the appellant was not considered “sufficiently unwell to warrant the making of an inpatient assessment order”: TR [54]. In light of these matters, the primary judge was correct to conclude that the possibility of treatment orders under the Mental Health Act was not a matter that clearly emerged from the material before the Tribunal.

43    However, even if the use by the Tribunal of the phrase “structured environment” were broad enough to embrace community housing options, the prospect of the appellant being able to access such community housing was not capable of discovery by reasonable inquiries. Inquiries directed to that end would involve consideration of contingencies outside the reasonable contemplation of the Tribunal. It would not only involve constructive or creative activity by the Tribunal to make those inquiries (NABE at [58]), it would also be an exercise in speculation without a firm factual foundation.

44    Furthermore, even if statements had not been made by the appellant’s lawyer about the appellant’s unsuitability for involuntary treatment orders, the success of the appellant’s argument would turn on whether the Tribunal should have considered the prospect that an involuntary treatment order could be made.

45    The applicable legislation at the time of the Tribunal’s decision was the Mental Health Act (not the Mental Health and Wellbeing Act 2022 (Vic) which came into force on 1 September 2023). Part 4 of the Mental Health Act dealt with compulsory mental health assessment and treatment, either in the community or as an inpatient. Three steps were involved in the process for obtaining an Inpatient Treatment Order, with each step involving a different decision-maker. First, a registered medical practitioner or a mental health practitioner was to make an Assessment Order under Division 1 of Part 4 of the Mental Health Act if certain treatment criteria were satisfied. Secondly, once an Assessment Order was in place, an individual was to be assessed by an authorised psychiatrist under Division 3 of Part 4 of the Mental Health Act, to determine if the criteria for the making of a Temporary Treatment Order were satisfied. Thirdly, if a Temporary Treatment Order was made, the Mental Health Tribunal was to conduct a hearing to determine whether the treatment criteria were satisfied and, accordingly, whether to make a Treatment Order: ss 53(1) and 55(1). The Mental Health Tribunal could only make an Inpatient Treatment Order (ie, compulsory treatment in a designated mental health service: s 52(1)(b) and s 52(3)) as opposed to a Community Treatment Order (ie, compulsory treatment in the community: s 52(1)(a) and s 52(2)) if satisfied that treatment of the person could not occur within the community: s 55(3). The maximum duration of an Inpatient Treatment Order was 6 months: s 57(2)(a)(ii).

46    It is not necessary to set out these provisions in further detail. It is enough to say that the process for obtaining Assessment and Treatment Orders under the Mental Health Act involved multiple decision-makers with specialist training applying specialist medical criteria. As the Minister submitted, whether the processes under the Mental Health Act were likely to be of any real benefit for the appellant was dependant on a speculative exercise by the Tribunal. They were not steps that were capable of having any real utility for the purposes of the Tribunal’s determination of risk assessment.

47    For these reasons, appeal grounds 1(b) and (c) are rejected.

Appeal ground 2(a)

48    In support of appeal ground 2(a), the appellant relied on ss 40A(1) and 43(1) of the AAT Act and s 56 of the Migration Act:

(1)    s 43(1) of the AAT Act provided that, for the purpose of reviewing a decision, the Tribunal could exercise all the powers and discretions that were conferred on the person who made the decision. Section 56(1) of the Migration Act provides that, in considering an application for a visa, the Minister may get any information that he or she considers relevant.

(2)    s 40A(1) of the AAT Act provided that, for the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal could summon a person to (a) appear before the Tribunal to give evidence and/or (b) produce any document or other thing specified in the summons.

49    Relying on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [20], the appellant submitted that (a) the question of possible accommodation was important; (b) information was available to the Tribunal about this topic; and (c) in the circumstances, including the Tribunal’s identification of the issue of structured accommodation linked to the appellant’s behaviour, the conclusion followed that the Tribunal’s failure to seek this information constituted a failure to perform its review function.

50    In a passage in SZIAI relied on by the appellant, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell J said (at [25], footnote omitted):

It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. 

51    In relation to the combined operation of s 43(1) of the AAT Act and s 56(1) of the Migration Act, the possibility of accommodation for the appellant if he were granted a protection visa was not a relevant matter for the Tribunal to consider. While the Tribunal accepted that there was a link between the availability of “structured accommodation” and the appellant’s criminal offending, the kind of structured accommodation that the Tribunal had in mind was a prison, detention centre or hospital. On the evidence before the Tribunal, only such places were capable of providing a setting to address the factors contributing to the appellant’s offending.

52    The only other possible controlled setting that was mentioned by the Tribunal was an inpatient treatment order. However, for the reasons explained earlier, the availability of an inpatient treatment order was not a prospect that arose from the evidence before the Tribunal. And, in any event, as we have explained above, the prospect of such an order being made could not be easily ascertained. Accordingly, the failure to make further inquiries in that respect did not constitute a failure to review.

53    Even if the Tribunal contemplated that “structured accommodation” might include community accommodation, “there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the [question of accommodation], could have yielded a useful result”. Nor was there anything “to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision”: SZIAI at [26].

54    As for s 40A(1) of the AAT Act, that provision was facultative in character. It could only operate in circumstances where the Tribunal formed the view (correctly) that further inquiries should be made. It does not advance the appellant’s case any further. The same is true of s 33(2A)(a) of the AAT Act, to which the appellant’s counsel referred at the hearing. That provision simply permitted the Tribunal to give a direction requiring any person who was a party to the proceeding to provide further information in relation to the proceeding. Without establishing the premise that community accommodation options or inpatient treatment orders were matters to which the Tribunal should have turned its attention and inquired about, neither s 40A(1) nor s 33(2A)(a) could be of any assistance to the appellant.

55    Appeal ground 2(a) is rejected.

Appeal ground 3(a)

56    The appellant contended that it was legally unreasonable for the Tribunal to find that the appellant was a danger to the Australian community for the purposes of s 36(1C)(b) of the Migration Act without seeking or having further information about the prospect of accommodation for the appellant if granted a protection visa. In oral submissions, it was rightly accepted by counsel for the appellant that success under either appeal ground 1 or 2 was necessary but not sufficient for success under appeal ground 3(a). Because the appellant has not established either appeal ground 1 or 2, then appeal ground 3 must fail. It is therefore not necessary to consider appeal ground 3.

disposition

57    For the foregoing reasons, the appeal must be dismissed. Counsel for the Minister said at the hearing that he did not seek his costs.

58    In the difficult circumstances of this case, counsel for the appellant should be commended for his assistance to the appellant and the parties are thanked for their assistance to the Court.

Associate:

Dated:    18 June 2026