Federal Court of Australia

Minister for Immigration and Citizenship v GNHW [2026] FCAFC 107

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    The Minister for Immigration and Citizenship appeals from a decision of a judge of this court pursuant to which orders were made that a writ of certiorari be issued quashing a decision of the Administrative Review Tribunal and a writ of mandamus be issued to the Tribunal in respect of the application for review: GNHW v Minister for Citizenship (No 2) [2025] FCA 1578 (judgment). The decision of the Tribunal involved an application for review, by the first respondent in these proceedings, of a decision of a delegate of the Minister declining to grant a Permanent Protection Visa (Class XA) (protection visa) on the basis that the respondent does not pass the character test in s 501(1) of the Migration Act 1958 (Cth). The Tribunal affirmed the decision of the delegate: GNHW and Minister for Immigration and Multicultural Affairs [2025] ARTA 80 (ARTA 2025).

1.1    Background

2    The respondent is a 33 year old citizen of South Sudan who, upon his arrival in Australia on 25 December 2017, was given a Global Special Humanitarian (Class BA) (Subclass 202) visa (subclass 202 visa) under the terms of the Migration Act. On 8 January 2020 he was convicted of various offences and sentenced to 24 months of imprisonment. As a consequence, his visa was cancelled pursuant to s 501(3A) of the Migration Act. Subsequently, the respondent successfully appealed against his sentence, which on 27 November 2020 was reduced to 7 months of imprisonment.

3    The respondent applied for a protection visa on 23 December 2020 and on 17 June 2021 a delegate of the Minister produced a draft Protection Visa Assessment Record that indicated that he met the requirements for being a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Migration Act.

4    On 15 December 2021 the respondent was re-notified by the Minister’s department of the decision to cancel his subclass 202 visa. He then sought revocation of the cancellation of that visa. On 4 October 2022, a delegate of the Minister decided not to revoke that cancellation. The respondent then sought a review in the Tribunal of the delegate’s decision and on 23 December 2022 the Tribunal issued its reasons, affirming the decision of the delegate not to revoke the mandatory visa cancellation: see GNHW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4439.

5    On 30 August 2024, the Minister’s department gave notice to the respondent of its intention to consider refusal of the protection visa application under s 501(1) of the Migration Act on the basis that the department was in possession of information which suggested that the respondent did not pass the character test because, in the event that he were allowed to remain in Australia, there was a risk that he would engage in criminal conduct: see ss 501(1), 501(6)(d)(i) of the Migration Act.

6    On 14 November 2024 a delegate of the Minister made a decision under s 501(1) of the Migration Act to refuse to grant the respondent a protection visa. The respondent sought a review of that decision. Also on 14 November 2024, the respondent was released from immigration detention into the community on a Class WR Bridging R (Removal Pending) (subclass 070) Visa (BVR visa). His release was as a consequence of the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137.

7    On 6 February 2025, the Tribunal affirmed the decision of the delegate not to grant the respondent a protection visa: see ARTA 2025. The respondent then applied to this Court for judicial review of that decision. On 21 November 2025 a judge of this Court made the orders and gave the judgment that is the subject of the present appeal.

1.2    Primary judgment

8    The primary judge considered three substantive grounds of review in his decision. In the first, the respondent contended that the Tribunal erred by asking itself the wrong question in assessing the risk to the Australian community, in that it failed to compare the risk to the community if the respondent was granted a visa and remained in Australia on a permanent visa, with the risk to the community if he was refused a visa and remained in Australia on a BVR visa, or by failing to consider a substantial and clearly articulated argument.

9    In both aspects of this argument, the respondent contended that the Tribunal failed to give proper consideration in a differentiated way to two counterfactual positions: (a) if the decision was reversed and the respondent was entitled to a protection visa (effectively granting him permanent residence); and (b) if he remained on the BVR visa. The respondent argued that if it were considered in this manner, the potential risk the applicant would pose to the community could be effectively mitigated by the grant of a permanent visa (review ground 1).

10    In the second, the respondent contended that the Tribunal erred by misconstruing or misapplying paragraph 8.2 of Ministerial Direction No. 110: Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (Direction), (which concerns family violence committed by the non-citizen) or by making a finding or findings that were irrational, illogical or unreasonable or by denying the respondent procedural fairness (review ground 2). This ground challenged the Tribunal’s consideration of a family violence report dated 24 July 2019 which concerned conduct of the respondent, and the Tribunal’s apparent conclusion that the conduct did amount to ‘family violence’ as defined in the Direction.

11    In the third, the respondent contended that the Minister breached his obligation under s 56(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to use his best endeavours to assist the Tribunal to make the correct or preferable decision in the review and achieve the objective in s 9 of the ART Act, which materially affected the conduct of the review by the Tribunal and deprived it of the ability to consider matters it was required to consider and resulted in a denial of procedural fairness (review ground 3). This ground concerned the legal consequences for the respondent if the protection visa were refused, and particularly the risk that the respondent would be removed to a third country pursuant to s 76AAA of the Migration Act 1958 (Cth).

12    In the judgment, the primary judge upheld the first and third of these grounds but rejected the second.

1.3    The Notices of Appeal and of Contention

13    In this appeal, the Minister advances two grounds of appeal which challenge the first and third review grounds (particulars omitted):

(1)    The primary judge erred in finding that the Tribunal had failed to consider a claim or an integer of a claim made by the respondent and that this purported failure gave rise to jurisdictional error affecting the Tribunal’s decision (appeal ground 1).

(2)    The primary judge erred in finding that the Tribunal had denied the respondent procedural fairness or otherwise failed to discharge its review function (appeal ground 2).

14    The respondent has filed a Notice of Contention in which he advances three grounds:

(1)    Independently of the basis on which review ground 1 was upheld by the primary judge, review ground 1 should be upheld on the basis that the Tribunal asked itself the wrong question or reasoned illogically by failing to compare the risk posed to the Australian community if the decision under review were affirmed with the risk posed if the decision under review were overturned; and

(2)    Independently of the basis on which review ground 3 was upheld by the primary judge, review ground 3 should be upheld on the basis that the failure of the Minister to use his best endeavours to assist the Tribunal to make the correct or preferable decision in the review breached s 56(1) of the ART Act, which breach materially affected the conduct of the review and deprived the Tribunal of the ability to consider matters it was required to consider.

(3)    The primary judge erred in failing to find, in respect of review ground 2, that the Tribunal misconstrued or misapplied paragraph 8.2 of the Direction, or made a finding that was irrational, illogical or unreasonable, by finding that the respondent had engaged in family violence.

1.4    Summary of Conclusions

15    It will be apparent that in order for the Minister to succeed in this appeal he must succeed on both of the grounds of appeal. For the reasons set out below, we consider that appeal ground 1 must be dismissed. As a consequence, there is no occasion to set aside the orders of the learned primary judge. No aspect of ground 2 of the appeal or any of the grounds advanced in the Notice of Contention requires determination in order for the Tribunal to reconsider the respondent’s application according to law. Accordingly, we decline to decide the remaining grounds.

2.    THE DECISION OF THE TRIBUNAL

16    The Tribunal noted that s 501(6)(e) of the Migration Act provides that a person does not pass the character test if, in the event that the person were allowed to remain in Australia, there is a risk they would engage in criminal conduct in Australia.

17    It first considered whether the respondent would pose that risk. In so doing, the Tribunal considered the circumstances of the respondent’s offending, noting that one of the contributing factors to his prior offending was his use of alcohol and that since being released from immigration detention the respondent had given evidence that he resumed drinking and that a witness had accepted that she had seen the respondent intoxicated since his release from detention. The Tribunal further noted that material produced under summons from the Victorian Police indicated that the respondent had had at least two interactions with Victoria Police, one for an alleged theft from a shop and one in relation to alleged sexual assault. Although acknowledging that they were mere allegations, the Tribunal expressed concern that the respondent had continued to have interactions with the police since his release from imprisonment.

18    The Tribunal recognised that the respondent had expressed remorse about his prior offending, it noted his resumption of drinking alcohol, that he has been charged with two further offences and interviewed in respect of a third. It noted that a medical professional who had spent the most time with the respondent had said that the probability that the respondent would repeat his offending was inseparable from the question of whether he ceases to abuse alcohol and that if he relapses into alcohol abuse there is a moderate risk of further offending. That evidence was accepted by the Tribunal. In those circumstances the Tribunal considered that there is more than a minimal or remote risk that the respondent would engage in criminal conduct if allowed to remain in Australia and so he did not pass the character test.

19    As a consequence of that finding, the Tribunal found that there was a risk within s 501(6)(d)(i) of the Migration Act and that accordingly the respondent did not pass the character test.

20    The Tribunal next turned to consider whether it should exercise the discretion to refuse to grant a protection visa to the respondent on that basis. In this respect, the Tribunal noted the Direction, being written directions issued by the Minister under s 499(2A) of the Migration Act, applied to the present case.

21    In conformity with the Direction, the Tribunal first considered the protection of the Australian community. It had regard to the nature and seriousness of the conduct of the respondent to date. The respondent had been convicted of: intentionally cause injury; drunk and disorderly in public place; drunk in a public place (two charges); fail to answer bail; and contravene a conduct condition of bail.

22    The Tribunal noted the imprisonment term of the intentionally cause injury conviction of 24 months (later reduced to 7 months on appeal). It noted the sentencing remarks of the trial judge which reflect that the respondent had wrestled the victim to the ground, punched him in the face numerous times, stomped on his head twice and used the victim’s own metal crutch to hit the victim in the face and head. The assault spanned almost five minutes and the respondent continued the assault despite a witness attempting to intervene. The trial judge had noted that the victim was a triple amputee with two prosthetic legs and a crutch for mobility. The respondent struck the victim 77 times around the head. The Tribunal noted that it was his only serious crime and that the trial judge had said that he would have imposed a lesser term of imprisonment and a community correctional if it were within his power, but considered he was unable to do so because of the respondent’s status as an unlawful non-citizen. The Tribunal concluded that the offence was very serious and violent upon a vulnerable victim and that should it be repeated there is a significant risk of harm to members of the community.

23    The Tribunal then assessed the likelihood of the respondent engaging in further criminal or serious conduct and concluded that there is a moderate possibility of further offending if the respondent did not receive treatment and lapses into alcohol abuse again, and that the respondent had relapsed into alcohol use since release from detention. Consequently, the Tribunal found that there is a moderate likelihood the respondent will reoffend and that the risk to the community is in the moderate range.

24    The Tribunal then considered clause 8.2 of the Direction, which provides that it must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision. It noted that the respondent had been named as the perpetrator in a family violence report dated 24 July 2019 which recorded that the affected family members were the respondent’s sister and her children who were under the age of 18 at the time. A police report recorded that the respondent returned home late at night appearing argumentative and alcohol affected and had an argument with his sister, during which he picked up a butter knife from the kitchen and started waving it around. It notes that the respondent did not make direct threats to his sister or anyone else in the household, although the police applied for a family violence safety notice. The Tribunal notes that the respondent was never charged with any offence relating to the incident and gave this factor some small weight in favour of refusing to grant the protection visa.

25    The Tribunal then turned to the strength, nature and duration of the respondent’s ties to Australia, in consideration of clause 8.3 of the Direction. The Tribunal found that he has strong ties to his immediate and extended family, lesser ties to the community, and that he has no known living relatives in South Sudan. The Tribunal gave this factor significant weight in favour of the grant of the protection visa.

26    The Tribunal next considered the best interests of minor children in Australia affected by the decision of the Tribunal, in accordance with clause 8.4 of the Direction. The Tribunal considered that the respondent resides with the children of his sisters and that two of them are minors, being his nieces who were both 10 years old. It was submitted before the Tribunal that he enjoyed a close relationship with those children, and in the case of the other minors in their family, he played a key male parental role in their lives. It accepted that he played an important role to his nieces in the past and found that the best interests of his nieces are served by the grant of the protection visa. This factor was given moderate weight by the Tribunal.

27    Turning then to the expectations of the Australian community in accordance with clause 8.5 of the Direction, the Tribunal considered that the safety of the Australian community is the highest priority. Given the Tribunal’s earlier finding of a moderate likelihood that the respondent would reoffend, and that the risk to the community was in the moderate range, the Tribunal gave moderate weight in favour of refusing the protection visa on this basis.

28    In addressing the other considerations identified in clause 9 of the Direction the Tribunal first considered the legal consequences of the decision. The Tribunal accepted that if the respondent is granted the protection visa, he will again be a permanent resident of Australia with the result that he will not be a “removal pathway non-citizen” subject to removal to a third country. Nor would he be required to comply with the conditions of the BVR visa that he holds.

29    The Tribunal accepted that there is a range of potential legal consequences under s 501 of the Migration Act and related provisions if the mandatory cancellation is not revoked, including:

    The likelihood of becoming an unlawful non-citizen subject to detention and/or removal;

    Refusal of other visa applications and cancellation of other visas;

    A prohibition on applying for other visas; and

    Periods of exclusion and special return criteria may apply,

30    The Tribunal noted that in general terms, upon cancellation of a visa the former visa holder immediately becomes an unlawful non-citizen who must, under s 189 of the Migration Act be detained and removed as soon as reasonably practicable under s 198. The Direction provides that non-citizens covered by a protection finding must remain in detention under s 189 until they are granted another visa or can be removed to a country other than the country in respect of which the protection visa was granted.

31    However, as the respondent is the subject of a protection finding made by a delegate on 22 November 2024 (protection finding), he has been granted a BVR visa and released from immigration detention and will not become unlawful as a result of that cancellation. As a result, instead of being held in detention he will remain in the community following the Tribunal’s decision, either as the holder of a BVR or as the holder of the protection visa. The Tribunal noted that for as long as the respondent is the subject of a protection finding he cannot be removed to South Sudan.

32    The Tribunal accepted that if the respondent is refused a protection visa, there will be significant restrictions on his ability to apply for any other kind of visa and that following the decision of the High Court in NZYQ, his ongoing detention is not authorised as a result of which he was released on a BVR. It also accepted that situation could change if a legitimate non-punitive purpose for his re-detention were to be identified, such as his potential removal to a third country or enabling a further visa application. It also accepted that the BVR visa imposes a number of reporting and other obligations on the respondent that, if he failed to comply, could have very serious consequences on the respondent including conviction for a criminal offence. One condition is that the respondent is required to report daily by telephone, which was accepted by the Tribunal as being a difficult obligation to comply with given his personal circumstances. Another condition is that he assist with and facilitate his own removal from Australia, which the Tribunal accepted would impose a strain on the mental health of the respondent. This was despite there being no realistic risk that he would be returned to South Sudan.

33    The Tribunal noted the respondent’s submission that he is now a “removal pathway non-citizen” who may be removed to a third country (not including South Sudan), and that the legislative changes made by Parliament and publicly reported statements made by the Minister are indicative of the government being determined to achieve a removal outcome for persons such as the respondent. The Tribunal recorded that whilst it is not clear whether a third country will become available to receive the respondent, the submission advanced was that it is (at [135]):

…fanciful to imagine that any potential third country will be a well resourced, industrialised country with legal protections for persons transferred there. It is argued there are no guaranteed minimum standards of treatment upon removal to a third country and conditions in the country are likely to be highly oppressive and include detention.

34    The Tribunal noted the response from the Minister’s representative that “her instructions were that there were no third country removal options for the [respondent]” (136).

35    The Tribunal also noted that whilst the Commonwealth is not known to have entered into a third country reception arrangement with any country at present, the provisions passed by the Government give it the power to enter into such arrangements and as such the Minister may exercise powers to remove the respondent to such a country. However, as no such country has been identified, it is not possible to assess the level of legal protections or conditions that persons removed to any such country may encounter.

36    The Tribunal then said that if the visa remains cancelled and the respondent is not removed to a third country, he will remain on the BVR visa indefinitely. While he can access Medicare and Centrelink as a holder of the BVR visa, he will not be able to access the NDIS should he apply in the future although he will be able to obtain employment, subject to some limiting conditions imposed by the grant of the BVR visa. He will not, however, have access to government loans for tertiary studies.

37    As a result, the Tribunal considered that the legal consequences of the decision, whether or not the respondent is removed to a third party or remains in Australia as the holder of a BVR visa, weigh strongly in favour of granting the protection visa.

38    The Tribunal then considered the extent to which the respondent would face impediments if removed from Australia to his home country (which was neutral given the unlikelihood of his removal to South Sudan), and the impact on Australian business interests (similarly a neutral consideration).

39    The Tribunal concluded at [153]–[157]:

153    Having regard to the nature and seriousness of the Applicant’s offending and conduct, and the risk to the Australian community should the Applicant commit further offences or other serious conduct, I give this very significant weight in favour of refusing to grant the protection visa. The two other primary considerations that weigh in favour of refusing the grant of the visa are that on one occasion the Applicant’s past conduct involved family violence and that the Australian community expects that he will not be granted the visa. I have given those considerations some small weight and moderate weight respectively in favour of refusing to grant the visa.

154    The remaining two of the primary considerations weigh in favour of granting the visa. I have found that the strength, nature and duration of the Applicant’s ties to Australia weigh significantly in favour of granting the protection visa, while the best interests of the Applicant’s nieces weigh moderately in favour of granting the visa.

155    In assessing the other considerations, I have found that the legal consequences of the decision weigh significantly in favour of the grant of the protection visa. I have assessed the considerations relating to the extent of impediments if removed and the impact on Australian business interests to be neutral.

156    As the Direction requires me to give the consideration of the protection of the Australian community greater weight than the other primary considerations, I conclude that the combined weight of the considerations that weigh in favour of refusing to grant the visa outweigh those that favour granting the visa. I conclude that the primary considerations of the protection of the community, family violence and expectations of the Australian community outweigh the considerations that favour granting the visa.

157    I have therefore affirmed the decision under review.

3.    GROUND 1

3.1    The reasons of the primary judge

40    The primary judge held that the Tribunal’s decision is affected by jurisdictional error because of a failure to address a claim that the risk of the respondent re-offending would differ, depending on whether the respondent was in the Australian community as the holder of a protection visa (thereby granting the respondent a permanent residency in Australia) or a BVR visa (rendering the respondent liable to being removed from Australia).

41    The primary judge’s relevant reasoning was:

30    I do not accept that the Tribunal’s reasons reveal a consideration of the subject of differentiated risk as between a position if a protection visa were granted, compared to that which would prevail in the event that residents in the community were governed by a BVR with all the conditions that entailed. It is true that, notwithstanding the extent of the medical and allied professional evidence before the Tribunal, there was not, in terms, a differentiated risk addressed. But there was extensive reference to a particular difficulty that the applicant had when under the influence of alcohol. Yet further, one must be cautious, in my view, in delving in detail into such evidence. It is enough to recognise, as I do, that on the whole of that evidence, it is possible to see how different types of restrictions might impact upon the applicant’s overall equanimity and likelihood of resort to alcohol and with that a risk of reoffending in the same way as had occurred so egregiously in the conduct the subject of the conviction or in other behaviours that presented a risk to the Australian community.

31    Put another way, I am satisfied that there was a failure to address an integer of the claim as made by the applicant via his statement and that, in terms of LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 (LPDT), that error was material. So the two questions which arise in relation to this type of alleged error – see [9] of LPDT – must be answered in favour of the applicant. That being so, I uphold ground 1.

3.2    The submissions

42    The Minister submits that the primary judge erred in making this finding because the text of 8.1.2(2) of the Direction does not require a decision-maker to assess risk by reference to two or more counterfactual visa outcomes and does not require a comparison of risk if a person were granted a BVR visa, with the risk if the person were granted a permanent (here, protection) visa. He submits that insofar as the decision of the Full Court in Minister for Immigration and Citizenship v DVRL [2026] FCAFC 73 at [82] (Lenahan J, Perry J agreeing at [1] and Stellios J agreeing at [2]) suggests otherwise, then it is at odds with Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 at [71]–[74] (Rangiah J, North J agreeing at [1]) and is therefore incorrect.

43    The Minister accepts that, regardless of the correctness of DVRL, in the specific circumstances of this case the Tribunal had an obligation in light of the respondent’s submissions before it to consider the differences between a permanent visa and a BVR visa for the respondent’s risk of reoffending. But the Minister submits that it did so. He submits that the reasoning of the Tribunal demonstrates that the Tribunal was aware of the differences between the two types of visa and considered them in some detail. He submits that it should be inferred from the reasoning of the Tribunal as a whole that in considering its assessment of risk, the Tribunal was very much aware of the matters considered later in its reasons concerning the differences between the visas, but that the driving consideration for the evaluation of the likelihood of reoffending was whether the respondent had relapsed into alcohol abuse or was receiving treatment, where the visa differences were more marginal and were immaterial to the risk assessment.

44    The respondent submits the Tribunal was obliged by clause 8.1.2 of the Direction to assess risk to the Australian community by reference to each potential outcome. It did not do so. He submits that this obligation was reinforced in DVRL at [76] (Lenehan J) that where both possible outcomes pose a risk to the Australian community, that risk must be assessed, and is not in conflict with the line of authority the Minister cites applying Moana, which confirms that the expression of or quantifying the assessment of risk during the course of applying the Direction need not done in a particular way. Additionally, Moana was decided in the context of a decision made personally by the Minister such that the Direction was not required to be followed. The respondent further submits that in any event, the correctness of DVRL does not arise because the respondent made express submissions which the Tribunal failed to confront.

3.3    Consideration

45    We consider that ground 1 of the appeal should be dismissed.

46    In his Statement of Facts, Issues and Contentions before the Tribunal the respondent argued that in comparison with the status quo (being his BVR visa), the grant of a protection visa would afford a greater level of protection to the Australian community under clause 8.1 of the Direction because his improved circumstances were likely to mitigate any risk he posed:

It is also submitted that any potential risk the [respondent] poses to the community could be effectively mitigated through the grant of permanent residence, should the refusal decision be set aside. Whilst on a temporary visa, we submit that the feelings of social sigma, ostracization, and possible perceptions (either self or from others) as a ‘second-class citizen’ are liable to negatively impact upon his mental health. Whereas having a permanent visa and being able to participate fully and freely in Australian life and access all services will lead to a reduction in stress, trauma and uncertainty in relation to his visa status and potential deportation and will improve his chances of rehabilitation. As a holder of a protection visa, he would be eligible for government loans and therefore have the option of returning to university studies. Opportunities to find fulfilling employment would also significantly increase if on a permanent visa.

47    This was reinforced in the concluding remarks at [73] of this document, where the respondent submitted that the grant of a protection visa “is a protective factor which will increase the [respondent’s] prospects of rehabilitation. The [respondent’s] rehabilitation is directly relevant to community safety as it reduces the risk of recidivism”.

48    Whilst we accept that the Tribunal addressed the differences between the grant of a protection visa (should the refusal decision be set aside and replaced with the grant of the visa) and the BVR visa (should the refusal be affirmed) in the context of the legal consequences of the decision at ARTA 2025 [118]–[140], nowhere did the Tribunal contemplate how those differences bore on the risk of reoffending and the protection of the Australian community. As the respondent cogently submits, the Tribunal’s consideration of those differences concerned the legal consequences of the decision for the respondent, a point that is demonstrated by the reasoning of the Tribunal at [139]:

If the visa remains cancelled and the [respondent] is not removed to a third country, he will remain on the BVR indefinitely. While the [respondent] can access Medicare and Centrelink as the holder of the BVR, I accept that he will not be able to access NDIS should he apply in the future. While the BVR permits him to obtain employment (within the conditions set out above), I accept his opportunities for employment will be greater if he is the holder of a permanent visa. I accept that while he is on a BVR, he will not have access to government loans for tertiary studies.

49    This is to be contrasted with the consideration urged upon the Tribunal, which was to consider the difference between the BVR visa and the protection visa in relation to his prospects of rehabilitation such that he would be less likely to offend in the future, and so would present a lower risk to the Australian community.

50    Nor, in our view, can it be said that the Tribunal gave proper consideration to the argument raised in its assessment of the likelihood that the respondent would engage in further criminal or serious conduct at [81]–[94] of its reasons. In that passage, the Tribunal refers to the respondent’s conduct from August 2019 onward, and to his statement given on 4 March 2021 when he referred to his personal circumstances, including difficulties he had in studying after arriving in Australia, the fact that he had applied for many jobs without success and living in crowded accommodation with his large family. The Tribunal also refers to his evidence of regret for his actions and desire to seek professional help to ensure that he never commits an offence again as well as the support that he receives, including from his family. The Tribunal accepted that the respondent is presently subject to a community treatment order which authorises compulsory treatment for his mental health condition, that he is remorseful for his offending and that he has trying to reduce his alcohol intake and that he has recently commenced or will commence treatment for his alcohol abuse disorder. The Tribunal says:

91    It is conceded that despite the [respondent’s] efforts, he has relapsed into alcohol abuse since returning to the community. I accept that relapse occurred in the context of his untreated mental health issues and the challenges in adapting to life in the community after a significant period of detention.

92    The protection visa applied [for] that is the subject of the review would, if granted, allow the [respondent] to remain permanently in Australia. As set out above, the [respondent] has had at least three interactions with Victoria police since his release from immigration detention in November 2024. He has been charged with two counts of theft (shop steal) arising out of an incident on 23 November 2024 and he received a warning from police on 1 December 2024 after being apprehended for theft. He was interviewed on 2 December 2024 in relation to an alleged sexual assault. I remain concerned that the [respondent] has continued to have interactions with the police since his release from detention.

93    I have found that the [respondent’s] offending which led to the conviction of intentionally causing injury constitutes a very serious assault upon a vulnerable victim. I have accepted Mr Coffey’s evidence to the effect that the [respondent] is at low chance of further offending provided his alcohol abuse is addressed, but that there is a moderate possibility of further offending if the [respondent] does not receive treatment and lapses into alcohol abuse again. It is not in dispute that the [respondent] has relapsed into alcohol use since his release from detention. For these reasons, I find that there is a moderate likelihood of that the [respondent] will reoffend, and that the risk to the community is in the moderate range.

94    Having regard to the nature and seriousness of the [respondent’s] offending and conduct, and to the risk to the Australian community should the [respondent] commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs strongly in favour of refusing to grant the protection visa.

51    Nowhere in this reasoning does the Tribunal refer to or purport to assess or weigh up whether the respondent’s alcohol abuse or other aggravating factors that it considers contribute to the likelihood of reoffending will be different or ameliorated if he were to change his present status from being the holder of a BVR visa to a protection visa. Contrary to the submission advanced by the Minister, we do not consider that the first sentence in [92] signifies that the Tribunal took the alternatives into account.

52    Nor do we consider that it may be inferred that the Tribunal took these matters into account. Although the Tribunal referred to the practical differences between the grant of a protection visa as compared with the status quo of the respondent holding the BVR visa in the passages leading to [139], set out above, it is apparent that the Tribunal was there adverting to the consequences to the respondent of one visa compared to the other. It was not considering the likely effect of one over the other in the context of the submission advanced by the respondent concerning his prospects of rehabilitation. We would expect that, had it taken the difference in visas into account, then the Tribunal would have mentioned that difference.

53    Having regard to the reasoning of the Tribunal as a whole, we do not consider that the Minister has established that the primary judge erred in concluding that the Tribunal failed to address an integer of the claim. The Minister accepts that if that conclusion is reached, there can be no dispute that the error was material within LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [32] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

4.    CONCLUSION

54    The consequence of our rejection of ground 1 of the appeal is that the learned primary judge was correct to make orders quashing the decision of the Tribunal and issuing a writ of mandamus requiring the Tribunal to hear and determine the respondent’s application according to law.

55    Although the Minister urges us to consider and determine ground 2 of his appeal (which concerns review ground 3 below), we do not consider that it is necessary for us to do so. Review ground 3 below involved an allegation that the Minister’s representative misled the Tribunal about the prospects of the respondent being removed to a country such as Nauru. However, events have moved on since the alleged misrepresentation by the Minister’s representative and, on remittal, there will be no dispute as to the status quo of the relationship between the Commonwealth and the Republic of Nauru.

56    As the appeal must be dismissed, it is unnecessary to consider any of the points raised in the respondent’s Notice of Contention.

57    Accordingly, we will order that the appeal be dismissed. The Minister must pay the respondent’s costs of the appeal.

Associate:

Dated:    25 August 2026