Federal Court of Australia

VRRQ v Minister for Immigration and Multicultural Affairs [2026] FCAFC 117

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

ANDERSON J:

1    I have had the advantage of reading the draft reasons of O’Sullivan J and the draft reasons of Lenehan J.

2    I agree with O’Sullivan J that ground one of the appellant’s notice of appeal should be dismissed for the reasons set out by his Honour.

3    I agree that ground two of the appellant’s notice of appeal should be dismissed for the reasons set out by Lenehan J.

4    I agree with the orders proposed by O’Sullivan J.

Associate:

Dated:    8 September 2026

REASONS FOR JUDGMENT

O’SULLIVAN J:

5    I have had the advantage of reading the draft reasons of Lenehan J and adopt with respect his Honour’s description of the background to this appeal. I agree with his Honour that ground two of the appellant’s notice of appeal should be dismissed for the reasons set out by his Honour.

6    Ground one of the Notice of Appeal contends that the primary judge erred by finding that the Tribunal’s error in assessing the appellant’s risk of reoffending by reference to “the stress of his uncertain immigration status” was not material.

7    In that part of the Tribunal’s reasons (T), the Tribunal was considering the protection of the Australian community under paragraph 8.1 of Direction 110: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA. As part of that evaluative process, the Tribunal considered the stress of the appellant’s uncertain immigration status when considering the appellant’s risk of reoffending.

8    The primary judge held that whereas it was clearly illogical for the Tribunal to have regard to “the stress of his uncertain immigration status” in considering the risk of the appellant reoffending: J [93], nonetheless that did not constitute a critical step in reaching the Tribunal’s ultimate conclusion, such that it was not material.

9    As a consequence, the primary judge held there was no jurisdictional error on the part of the Tribunal.

10    The issue arising from ground one of the appeal is whether the primary judge erred in finding that the Tribunal’s illogical reasoning was not material.

11    It is for the following reasons that I would dismiss ground one of the appeal, such that the appeal should be dismissed.

12    The Minister contends by a Notice of Contention filed on 10 October 2025 that the primary judge’s finding as to illogicality was erroneous. Since I have determined that the appeal should be dismissed, it is not necessary to deal with that matter.

Primary judge’s reasons

13    The primary judge commenced by setting out the Tribunal’s impugned reasoning: at J [64]-[65]:

64    In its reasons, the Tribunal considered the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. This analysis included, amongst other things, an assessment of the likelihood of the Applicant engaging in such conduct. The Tribunal set out, at some length, the expert evidence and other evidence relevant to the risk of the Applicant reoffending. The identified risk factors included, but were not limited to, the Applicant returning to drinking heavily, which was an acknowledged factor in his past offending.

65    The Tribunal noted that “[d]rinking heavily is acknowledged by the Applicant, and the professionals who have interacted with him, to be a major cause of his offending in the past”. At T [105]–[106], the Tribunal concluded (bold emphasis added):

While the Tribunal acknowledges the sincere efforts made by the Applicant to seek treatment, his belief that he now has effective strategies to manage his drinking, and the stabilising factor of his current employment five days a week, it remains concerned that the Applicant has the potential to resume heavy drinking again (particularly given the stress of his uncertain immigration status and his limited support from family or friends), which would elevate his risk of reoffending beyond the moderate risk identified by Ms Bovenkerk in her February 2024 [report]. The Tribunal also gives weight to Ms Bovenkerk’s observation that this risk was heightened by alcohol use (not only by alcohol abuse) (Tribunal’s emphasis in italics).

The Tribunal considers that the Applicant is at moderate risk of reoffending and at higher risk of doing so if he resumes drinking heavily. The Tribunal gives this factor weight in favour of not revoking the cancellation of his Subclass 101 (Child) visa.

(Emphasis and square brackets in original.)

14    The primary judge found that it was clearly illogical for the Tribunal to have regard to the appellant’s “stress of his uncertain immigration status” in considering the risk of him reoffending: J [92]-[93].

15    Having found that the Tribunal’s reasoning was illogical, the primary judge observed that the conclusion as to illogicality, by itself, did not constitute jurisdictional error. The primary judge continued that there are some cases where an erroneous finding or reaching a mistaken conclusion can result in jurisdictional error, referring to the plurality’s judgment in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321: at [2]-[3]: J [94].

16    The primary judge considered that the illogical reasoning affected a finding of fact made by the Tribunal “on its way to ultimately determining that the cancellation decision should not be revoked”, that the finding of fact was that “the [appellant] is at moderate risk of reoffending and at a higher risk of doing so if he resumes drinking heavily” and that the reasoning “took in its anterior factual conclusion that there was a risk that the appellant would resume drinking heavily”: J [95].

17    Turning to the issue of materiality, the primary judge referred to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611: at [130]-[131] and [135] where Crennan and Bell JJ said in a well-known passage that not every lapse in logic will give rise to jurisdictional error. SZMDS: at [132] is also important and I include it in this extract:

130        In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

131        What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

132        Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal’s finding that the first respondent’s return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.

    …

135        On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. …

(Emphasis in primary judge’s reasons.)

18    The primary judge observed that the Minister did not contend that this was a case where the relevant illogicality is in respect of a matter on which reasonable minds might differ. Rather, the Minister’s case was that the illogicality did not amount to jurisdictional error because it was not material: J [97].

19    The primary judge observed that the illogicality in reasoning related to a factual matter, which was the risk of the appellant resuming heavy drinking. The primary judge identified that factual matter as an intermediate step “on the way” to the Tribunal’s ultimate finding in relation to the risk of the appellant reoffending, and that jurisdictional error can arise from findings which are part of the process in reaching a final conclusion, referring to, amongst other decisions, SZMDS: at [132] and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 (Wigney J): at [54] and the cases cited therein: J [98].

20    From that point, the primary judge identified the question as being “... when illogicality or irrationality in relation to such an intermediate step will result in jurisdictional error being established”: J [98].

21    The primary judge had dealt with a number of authorities on that point earlier in her Honour’s reasons, noting that most of those authorities pre-dated LPDT. Her Honour nonetheless concluded that she should continue to apply those authorities, notwithstanding that:

(a)    they were not easy to reconcile with what the High Court said in LPDT, on the basis that the body of authority in question included statements in Full Court decisions both before and after LPDT, albeit obiter dicta; and

(b)    there was no indication in LPDT that qualified the observations of Crennan and Bell JJ in SZMDS about illogicality and irrationality: J [99].

22    I deal with LPDT later in these reasons, but her Honour was, with respect, correct in those observations.

23    The primary judge identified two Full Court authorities in particular: Masi-Haini v Minister of Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277: at [47] (Markovic, Meagher and Kennett JJ) and XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 (Markovic, Cheeseman and Horan JJ).

24    As to Masi-Haini, the primary judge: at J [100], noted that the primary judge in that matter had found both that a statement made by the Minister was incapable of providing support for the finding that the Minister drew from it, such that there was an error in fact finding, and that there was no other evidence or material to support the Minister’s finding.

25    The Full Court in Masi-Haini: at [34]-[36] disagreed with the primary judge that there was no other evidence or material to support the Minister’s finding, identifying a range of material that supported the finding, and concluding that the Minister’s decision was not infected by legal error. On that basis, the Full Court considered that no jurisdictional error had been made out.

26    There was an attempt by the appellant in Masi-Haini to recast the error as one involving illogicality as opposed to an absence of evidence. The Full Court, whilst holding that the argument did not arise from the grounds of appeal and that an amendment would be required to raise it (which had not been sought), nonetheless considered the point and found that no jurisdictional error had been established on that basis either. The Full Court’s consideration of the issue was obiter dicta.

27    In the course of considering the issue of illogicality, the Full Court in Masi-Haini: at [50] referred to the Full Court’s decision in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [35]:

35    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20-21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

28    The Full Court in Masi-Haini continued: at [51]-[52] that:

51    The phrase “irrational, illogical or not based on findings or inferences supported by logical grounds” can be traced back to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [38] (Gummow and Hayne JJ), which the Court cited. The framing of the ultimate issue in terms of whether the state of satisfaction could have been reached logically echoes the reasoning of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131], [135], which this Court in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 regarded as constituting the majority reasoning in that case.

52    If a decision or state of satisfaction is not infected by illogicality or irrationality in the sense discussed in Djokovic (so as to be, as the Court put it, “unjust, arbitrary or capricious”), no relevant error is made out and questions of materiality, in the MZAPC sense, do not arise. On the other hand, if the decision or state of satisfaction is found to be so infected, a conclusion of materiality is implicit in that conclusion and no further threshold needs to be met: MZAPC at [33] (Kiefel CJ, Gageler, Keane and Gleeson JJ). The MZAPC line of authority is thus irrelevant.

(Emphasis in original.)

29    The primary judge observed that the Full Court in Masi-Haini applied the approach approved by the Full Court in Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81: at [35] (Charlesworth J, with whom Flick and Perry JJ agreed), which had decided that illogical reasoning would not be jurisdictional if it is “immaterial, or not critical, to the ultimate conclusion or end result”: J [103]-[104]; see also Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [55].

30    The primary judge noted the observations of the Full Court in Masi-Haini that the approach it was taking may represent a different approach to the issue from that formulated in Djokovic, but adopted the Muggeridge approach without needing to determine whether the approach was different to that taken in Djokovic: Masi-Haini at [54].

31    The primary judge continued by noting that the same approach adopted in Masi-Haini was approved by the Full Court in XRZG, albeit, once again, obiter dicta: J [105]. In that matter, the Full Court was dealing with circumstances involving an absence of evidence or lack of logical grounds.

32    The primary judge cited XRZG: at [64], but [63] is also important and I include it in this extract:

63    For present purposes, it is sufficient to note that a finding of fact made without a “skerrick” of evidence will amount to an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [91] (Hayne, Heydon, Crennan and Kiefel JJ); Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [575] (Weinberg J); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 (Mason CJ). Whether such an error of law amounts to jurisdictional error will depend on the nature and significance of the finding of fact. On any view, in order to amount to jurisdictional error, the relevant finding must have been at least a “critical step” on which the ultimate decision was based, if not a precondition to the exercise of jurisdiction: see eg SZMWQ v Minister for Immigration and Citizenship (2010) 187 FCR 109 at [125] (Flick J, Besanko J agreeing); Australasian Meat Industry Employees' Union v Fair Work Australia (2012) 203 FCR 389 at [92] (Flick J); cf Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12 at [39] (Gummow and Hayne JJ, Gleeson CJ agreeing).

64    In this regard, it is worth noting that the ground of appeal on which the appellant relies alleges jurisdictional error on the basis of legal unreasonableness, namely, that the Tribunal erred by making a finding that was legally unreasonable because it was without a probative basis. An absence of evidence or a lack of logical grounds for a particular finding or inference of fact might be such that “it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically and rationally on the available material”: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [35] (Allsop CJ, Besanko and O'Callaghan JJ). However, any such irrationality in the course of making a particular finding of fact would only amount to jurisdictional error if the fact was “critical” to the ultimate decision: see Masi-Haini v Minister for Home Affairs (2022) 298 FCR 277 at [54] (Markovic, Meagher and Kennett JJ).

(Emphasis in [64] by the primary judge.)

33    The primary judge: at J [107] referred to XRZG: at [65] where the Full Court held that it was unnecessary to deal with a submission by the Minister as to materiality (hence the Full Court’s statement being obiter dicta):

107    The Full Court considered that it was not necessary to deal with the Minister’s submission that any impugned finding involving legal error had not been shown to be material. Their Honours concluded on that point (at [65], emphasis added):

Any question of materiality in this context would have been determined by reference to whether there was a realistic and non-fanciful possibility of a different outcome if the error had not occurred, taking into account the evaluative assessment and weighing exercise undertaken by the Tribunal in exercising the power under s 501CA(4): see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; TPTN v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 304 FCR 244 at [55]-[63] (Collier ACJ, Meagher and Horan JJ). In particular, if a finding of fact for which there was no probative basis was critical to the Tribunal’s ultimate decision, the threshold of materiality is likely to be easily met.

(Emphasis by primary judge.)

34    Having reviewed those authorities, including LPDT, the primary judge proceeded on the basis that in order to constitute jurisdictional error, the appellant needed to establish that the illogicality which the primary judge had found was “central to the ultimate decision whether that is put in terms of being “critical” or “not immaterial””: J [109]. The primary judge continued that if that were the case, then consistently with XRZG: at [65], it would satisfy the materiality test in LPDT (apart from the particular types of error that are jurisdictional in all cases as identified by the plurality in LPDT: at [6]): J [109].

35    Before the primary judge, the Minister had argued that the uncertainty of the appellant’s immigration status was but one factor and not a primary factor within the matrix of facts considered by the Tribunal: J [80]:

80    In advancing the argument that the uncertainty of the Applicant’s immigration status was only one factor, and not a primary factor, within the broader factual matrix of the Tribunal’s assessment, the Minister listed several matters considered by the Tribunal:

(a)    the nature of the harm to the Australian public should the Applicant reoffend (T [64]–[65]);

(b)    the Applicant’s efforts to rehabilitate through various forms of counselling (T [96]);

(c)    the Applicant’s abstinence while in detention (T [102]);

(d)    the Applicant developing insight into his behaviours (T [102]);

(e)    the Applicant’s age (T [102]); and

(f)    the durability of the Applicant’s rehabilitation efforts, particularly in light of the short period of time he had been out of detention, the fact that he had already resumed drinking, and his numerous failed attempts to give up heavy drinking in the past (T [103]).

36    The primary judge also observed that in accordance with Direction 110 there were several other matters the Tribunal considered in determining the weight to be given to the nature and seriousness of the appellant’s offending when considering the question of revocation: J [81].

37    The primary judge found that in its reasoning on the way to reaching its ultimate conclusion, the Tribunal addressed the various considerations set out in Direction 110. Her Honour noted that the appellant did not contend that it was not open on the evidence for the Tribunal to make the factual findings it did as to the appellant’s moderate risk of reoffending and the higher risk of doing so in the event the appellant resumed drinking heavily. Nor did the appellant contend before the primary judge that on the evidence it was not open to the Tribunal to express its concern about the appellant’s potential “to resume heavy drinking again”: J [110]

38    Having identified the approach to be taken, the primary judge concluded: at J [111] that:

111    In light of the body of evidence before the Tribunal concerning the Applicant’s history with alcohol, the fact that he had recommenced drinking since leaving detention, the lack of family and social support for the Applicant and the connection between his offending and drinking heavily, the Tribunal’s reference to the Applicant’s “uncertain immigration status” was a simple lapse in logic, and not one that has been shown to have caused a wrong factual finding (regarding the risk of the Applicant reoffending), or otherwise to have been critical to the Tribunal’s decision.

The parties’ submissions on appeal and consideration

39    The appellant submitted that given the Tribunal’s reasoning that informed the determination of the likelihood that the appellant might reoffend was illogical, and that that factor weighed more heavily than other factors in determining whether to revoke the cancellation, the ultimate decision was irrational.

40    The appellants refer to the High Court’s observations in LPDT: at [35] and [36], submitting that the primary judge’s conclusion: at J [111] that “… the Tribunal’s reference to the applicant’s “uncertain immigration status” was a simple lapse in logic, and not one that has been shown to have caused the wrong factual finding (regarding the risk of the applicant reoffending), or otherwise to have been critical to the Tribunal’s decision” was erroneous.

41    The appellant identifies that error as being that the primary judge’s analysis did not consider that the illogicality was not merely a finding of fact, but goes to the illogical reasoning by which the Tribunal determined the level of risk and the overall weight of that factor (protection of the Australian community) in the overall balance of the factors under Direction 110.

42    The reliance by the appellant on the High Court’s statements in LPDT: at [35]-[36] fails to consider the background leading to the statements in those two paragraphs. It is instructive.

43    At [33]-[35] of LPDT, the plurality identified the multiple errors in reasoning the High Court was considering:

33            The error of the Tribunal was a breach by a statutory decision-maker of a condition governing the process of reasoning to be undertaken in exercising the decision-making power under s 501CA(4). The condition imposed by s 499(2A) by reference to Direction 90 required the Tribunal to take into account, as mandatory considerations, the primary considerations identified in para 8 and the other considerations in para 9, where those considerations were relevant to the decision. Fulfilment of the condition required the Tribunal to identify which of those mandatory considerations were relevant to the particular circumstances of the particular applicant. Then, having identified the relevant mandatory considerations, the exercise of the discretion under s 501CA(4) required the Tribunal to engage in an evaluative assessment involving the weighing of those relevant mandatory considerations with other relevant considerations.

34            In this case, the Tribunal did not follow the required process of reasoning. In relation to para 8.1.1(1)(a), the unavoidable inference is that the Tribunal misunderstood the provision, the appellant's conduct, or both. In relation to para 8.1.1(1)(b), it is not possible to comprehend how the Tribunal made its findings. In relation to para 8.1.1(1)(g), the Tribunal regarded the consideration as directly relevant when there was no evidence before the Tribunal showing that it did apply. There is no rational basis for the Tribunal's findings.

35            Those aspects of the error, in the statutory context in which the decision was made, compel the finding that the evaluative conclusion reached by the Tribunal in the exercise of the discretion under s 501CA(4) could have been different if there had been no error. Each particular of the error contributed to the evaluative and discretionary decision which the Tribunal made in that each bore on the Tribunal's assessment of Primary Consideration 1, and in that the Tribunal's assessment of Primary Consideration 1 weighed in favour of its exercise of discretion under s 501CA(4) not to revoke the cancellation of the appellant's visa. The Tribunal's error in its process of reasoning in these respects alone established that the error was material.

(Citation omitted.)

44    It was against that background that the plurality continued: at [36]:

36        It would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning in these respects. It follows that there is a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred. The threshold of materiality was met. None of the facts before the Court provided a basis to consider that the outcome would inevitably have been the same had the error not been made. The error was jurisdictional. The curial relief sought by the appellant should be granted.

(Italics in original.)

45    It is apparent that not being able to discern how the Tribunal would have reasoned had it not engaged in the impugned reasoning was at least one reason that the High Court made the statements it did: at [35]-[36].

46    Further, it is significant that the High Court did not say that the “critical step” approach should not be adopted or that simply because there was an error in the process of reasoning, the error was material. It seems that such an approach would have been inconsistent with the plurality’s earlier statement in LPDT: at [6]:

6    In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.

(Citations omitted.)

47    That being the case, the appellant’s submission that the primary judge erred in light of the High Court’s observations at [35]-[36] of LPDT cannot be accepted.

48    Next, the appellant submits that both Masi-Haini and XRZG involved alleged errors in the sense that there was no probative evidence to support the decision-maker’s finding as opposed to illogicality, and that the Full Court’s comments on the threshold requirement for jurisdictional error were obiter dicta.

49    So much so may be accepted but in both those cases, the issue being considered was quite different from that being considered in LPDT which, as noted above, involved multiple errors such that it was not possible to tease out the effects of the individual errors.

50    As I have noted, the High Court in LPDT qualified its conclusion: at [36] by identifying that the Tribunal’s error in its process of reasoning “in these respects” established the error was material.

51    That is not this case.

52    Next, the appellant submits that the approach taken in XRZG: at [64], being that the element of criticality of a particular finding or inference of fact “would only amount to jurisdictional error if the fact was ‘critical’ to the ultimate decision”, stems from the approach taken in SZUXN, Muggeridge and Masi-Haini, namely that the illogical reasoning will not go to jurisdiction “if that reasoning or finding of fact was immaterial, or not critical, to the ultimate conclusion or end result”: see, for example, Masi-Haini at [54].

53    The appellant submits that “critical”, in the sense used in those authorities and XRZG, was a synonym for “material” as explained by the High Court in LPDT, and that such an approach is consistent with the Full Court’s judgment in EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128; (2025) 311 FCR 155: at [35]-[36] (Hill J).

54    In EUD24, Hill J observed: at [35]-[36] (with Cheeseman and Owens JJ finding it unnecessary to decide the issue) that:

35    In this case, the appellant does not contend that the ultimate outcome was unreasonable, but that certain critical findings of fact were. In Masi-Haini at [54], the Full Court queried, without deciding, whether it was consistent with Djokovic to treat illogicality in the course of making a “critical” finding of fact as a matter going to jurisdiction. In my view, it is: the arguments considered in Djokovic included arguments that there was a lack of evidence or material upon which to found central conclusions of fact within the process of reaching a relevant state of satisfaction: see Djokovic at [31]. Further, the “critical fact” approach is supported by statements by Crennan and Bell JJ that jurisdictional error may be able to be established on the basis of illogical or irrational findings “on the way” to the final conclusion: see Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [54] (Wigney J), citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [132]. This approach also promotes consistency with the closely related principles relating to legal unreasonableness, which applies to both the outcome of the decision and the process by which it is made (including the reasoning that led to that outcome): see Palmer at [101]; Minister for Immigration, Citizenship and Multicultural Affairs v Lieu (2023) 297 FCR 162 at [81] (Mortimer CJ).

36    To be clear, this does not mean that any illogical or irrational finding of fact will constitute jurisdictional error: jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: SZUXN at [55]; BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 26 at [29] (the Court); XRZG v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 305 FCR 349 at [63]-[64] (the Court). In this way, the “critical step” approach to the illogicality or irrationality ground has a built-in requirement of materiality, and can be readily accommodated with the High Court's discussion of materiality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [6]: see Masi-Haini at [52]; VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983 at [108]-[109] (Button J).

(Emphasis in original.)

55    The appellant continues that the primary judge recognised that “critical” and “not immaterial” meant the same thing but contends her Honour’s reasoning: at J [110]-[111] is difficult to reconcile with those statements.

56    I accept that the primary judge recognised that “critical” and ‘not immaterial” can mean the same thing.

57    In advancing that submission further, the appellant contends that the primary judge’s analysis misses the point of the appellant’s complaint which is that the illogicality was not merely a finding of fact but constitutes illogical reasoning in the way the Tribunal determined the level of risk of the appellant reoffending and in turn the balancing of the factors to be weighed under Direction 110.

58    It is in that sense that the appellant relies on the High Court’s statement in LPDT: at [36] that the evaluative nature of the task is such that there is a possibility, not fanciful or improbable, that the decision made “… in fact could have been different if the error had not occurred”. So it is that the appellant contends that the Tribunal’s assessment of risk could have been lower but for the illogical reasoning, with the consequence that the conclusion could have been different.

59    I do not accept that submission.

60    The primary judge was considering a Tribunal decision where the considerations mandated in Direction 110 had been evaluated. The risk of reoffending was part of the first primary consideration, being the protection of the Australian community. That consideration involved a number of component parts.

61    As to the risk to the Australian community should the appellant commit further offences or engage in other serious conduct (paragraph 8.1.2 of Direction 110), the Tribunal considered the nature of the harm to be very serious given the offending included sex offences involving, amongst others, a child and a disabled person and weighed in favour of non-revocation.

62    It was on the issue of the likelihood of the appellant engaging in further criminal or serious conduct that the Tribunal concluded for a number of reasons (one of which was illogical) that overall, the appellant was at moderate risk of reoffending and at higher risk of doing so if he resumed heavy drinking.

63    As to the particular consideration, the primary judge identified the other evidence before the Tribunal which supported the Tribunal’s finding on the risk of reoffending such that the finding was not based solely on the increased risk of drinking as a consequence of stress due to the uncertainty of the appellants visa status.

64    The primary judge also considered the question of the effect of the impugned finding on the Tribunal’s ultimate conclusion, finding that the lapse in logic was not otherwise critical to the decision.

65    It was in that sense that the primary judge concluded: at J [111]:

111    …the Tribunal’s reference to the Applicant’s “uncertain immigration status” was a simple lapse in logic, and not one that has been shown to have caused a wrong factual finding (regarding the risk of the Applicant reoffending), or otherwise to have been critical to the Tribunal’s decision.

66    Clearly, the primary judge was alive to the question of what role, if any, the impugned finding bore in relation to both the particular consideration being evaluated and the Tribunal’s ultimate decision.

67    It is also significant that, quite apart from the particular finding under examination, the primary judge referred to other Direction 110 considerations which supported the Tribunal’s ultimate conclusion.

68    The approach by the primary judge was in accordance with authority. The application of that approach to the single, impugned illogicality which the primary judge: at J [111] considered had not “been shown to have caused a wrong factual finding (regarding the risk of the Applicant reoffending), or otherwise to have been critical to the Tribunal’s decision” was well-founded.

69    Accordingly, the primary judge did not err in:

(a)    finding that the Tribunal’s reference to the applicant’s “uncertain immigration status” was a simple lapse of logic which did not result in a wrong factual finding in relation to the risk of the appellant reoffending;

(b)    finding that the simple lapse of logic was not otherwise critical to the Tribunal’s ultimate decision; nor

(c)    rejecting the appellant’s contention that the illogicality identified by her Honour could have resulted in a different conclusion.

70    It is for these reasons that ground one of the appeal fails.

Conclusion

71    The appeal should be dismissed.

72    The appellant is to pay the respondent’s costs of and incidental to the appeal.

Associate:

Dated:    8 September 2026

REASONS FOR JUDGMENT

LENEHAN J:

1.    INTRODUCTION

73    A decision-maker makes findings of fact involving “extreme” illogicality or irrationality. There was a realistic possibility that the decision could have been different had those errors not been made. Is that sufficient to conclude that the decision involves jurisdictional error? Or is there some further requirement that the relevant findings be “critical” to that decision? Those questions, which require consideration of important matters of fundamental principle, are not the subject of clear answers dictated by High Court or intermediate appellate authority. In my view, there is no additional requirement that the relevant findings be “critical”, and the application of that (vague and inherently subjective) criterion or test risks the Court entering into impermissible merits review. The doubts of the primary judge as to that issue were well founded. The majority has taken a different view. For the reasons set out below, I would dismiss the Minister’s notice of contention and allow the appeal with costs.

2.    BACKGROUND

74    This is an appeal from a decision of a judge of this Court (the primary judge), dismissing an application for judicial review of a decision made by the second respondent, the Administrative Review Tribunal (the Tribunal): VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983 (the PJ). By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the cancellation of the appellant’s Class AH Subclass 101 Child visa (child visa).

2.1    Child visa

75    The appellant was born in Zimbabwe in 1998, was granted a child visa on 3 June 2016, and arrived in Australia, aged 18, on 20 December 2016.

76    On 7 June 2022, the appellant was convicted of various offences, including three counts of sexual assault under s 40 of the Crimes Act 1958 (Vic). The appellant received an aggregate sentence of eight months’ imprisonment and an 18-month community corrections order. On 25 July 2022, the appellant’s child visa was mandatorily cancelled under s 501(3A) of the Act (the cancellation decision).

77    On 10 October 2024, a delegate of the Minister made a decision not to revoke the cancellation decision under s 501CA(4) of the Act (the non-revocation decision). On 19 October 2024, the appellant lodged an application for review of the non-revocation decision with the Tribunal. On 7 November 2024, the appellant was subsequently granted a Class WR Bridging R (Subclass 070) Visa which remains in force (the bridging visa). On 2 January 2025, the Tribunal affirmed the non-revocation decision (the Tribunal’s decision of 2 January 2025).

78    On 11 July 2025, the appellant filed an application with this Court for judicial review of the Tribunal’s decision of 2 January 2025 (the review application).

79    On 20 August 2025, the primary judge ordered that the review application be dismissed with costs. In addition to finding that the Tribunal did not err in finding that the appellant has been convicted of a sexually based offence involving a child within the meaning of s 501(6)(e)(i), the primary judge made the following findings.

(1)    Although the Tribunal did err in assessing the appellant’s risk of re-offending having regard to “the stress of his uncertain immigration status”, the Tribunal’s error was “a simple lapse in logic, and not one that has been shown to have caused a wrong factual finding (regarding the risk of the [appellant] reoffending), or otherwise to have been critical to the Tribunal’s decision [of 2 January 2025]”: see PJ [63]-[113].

(2)    Although the Tribunal’s statement that “any third country [to which the appellant might be removed] would have to be assessed as ‘safe’ in order for the [appellant] to be removed” was “somewhat infelicitous”, the Tribunal was clearly not operating “under a misconception that the legislative regime restricted the Executive so that the [appellant], as a matter of the operation of the legislation, could only be removed to a ‘safe’ third country”: see PJ [114]-[135].

80    On 19 September 2025, the appellant filed a notice of appeal with this Court, containing two grounds of appeal (the notice of appeal). First, the primary judge erred by finding that the Tribunal’s error in assessing the appellant’s risk of reoffending by reference to “the stress of his uncertain immigration status” was not material (ground 1). Second, the primary judge erred by failing to find that the Tribunal made a material error in finding that “any third country [to which the appellant might be removed] would have to be assessed as ‘safe’ in order for the [appellant] to be removed” (ground 2).

81    On 10 October 2025, the Minister filed a notice of contention, contending that the primary judge’s decision should be affirmed on grounds other than those relied on by the Court (the notice of contention). The Minister there contended:

… [t]he primary judge erred in finding that it was illogical for the Tribunal, at [105] of its decision, to have regard to “the stress of [the appellant’s] uncertain immigration status” in considering the risk of the [appellant’s] reoffending (J: [91]-[93]).

The primary judge ought to have held that that reasoning was not illogical.

2.2    Protection visa application

82    On 22 January 2024, the appellant applied for a Class XA Subclass 866 Protection visa (protection visa) which was refused by a delegate of the Minister. On 15 May 2024, the former Administrative Appeals Tribunal (now Administrative Review Tribunal) set aside the delegate’s decision and remitted the matter to the Department of Home Affairs for reconsideration with a direction that the appellant satisfies s 36(2)(a) of the Act (the Tribunal’s decision of 15 May 2024). In so doing, the Tribunal found that the appellant “has a well-founded fear of persecution in Zimbabwe for reasons of his membership of a particular social group being bisexual males in Zimbabwe or same-sex attracted males in Zimbabwe or both”: see Tribunal’s decision of 15 May 2024 [84]; see also PJ [3].

83    That finding is of some importance for ground 2 of the appellant’s appeal; its significance lies in the fact that it was a “protection finding” within the meaning of s 197C(5) of the Act. The effect of that was that s 198 did not require or authorise an officer to remove the appellant to Zimbabwe: s 197C(3) of the Act. I will return to the manner in which that plays a part in the appellant’s arguments on ground 2.

84    For completeness, as regards the protection visa application, I note the following:

(1)    On 29 October 2024, a delegate of the Minister made a decision to refuse to grant the appellant a protection visa under s 501(1) of the Act (the delegate’s (protection visa) decision): see PJ [4].

(2)    On 25 February 2025, the appellant made an application with the Tribunal for review of the delegate’s (protection visa) decision (the review (protection visa) application): see VRRQ v Minister for Immigration and Citizenship [2026] FCA 77 (the protection visa judgment) at [8].

(3)    On 15 May 2025, the Tribunal found that it did not have jurisdiction to determine the review (protection visa) application on the basis that the nine-day period within which an application for merits review with the Tribunal could be made had expired (the Tribunal’s (protection visa) decision): see protection visa judgment at [11].

(4)    On 18 June 2025, the appellant filed an originating application with this Court, seeking judicial review of the Tribunal’s (protection visa) decision under s 476A(1)(b) of the Act: see protection visa judgment at [1]. On 12 February 2026, a judge of this Court determined that the appellant’s review application was not filed outside the time permitted by s 500(6B) of the Act: see protection visa judgment at [68].

85    I now turn to consider the Minister’s notice of contention.

3.    NOTICE OF CONTENTION

86    Logically, the notice of contention falls for consideration before ground 1. If the Minister is correct in his submissions regarding the notice of contention, ground 1 does not arise.

87    The notice of contention advanced the argument that the primary judge erred in finding that it was illogical for the Tribunal “to have regard to ‘the stress of [the appellant’s] uncertain immigration status’ in considering the risk of the [appellant’s] reoffending”: PJ [91]-[93].

88    The relevant passage of the Tribunal’s reasons was paragraph [105]:

While the Tribunal acknowledges the sincere efforts made by the [appellant] to seek treatment, his belief that he now has effective strategies to manage his drinking, and the stabilising factor of his current employment five days a week, it remains concerned that the [appellant] has the potential to resume heavy drinking again (particularly given the stress of his uncertain immigration status and his limited support from family or friends), which would elevate his risk of reoffending beyond the moderate risk identified by Ms Bovenkerk in her February 2024 [report]. The Tribunal also gives weight to Ms Bovenkerk’s observation that this risk was heightened by alcohol use (not only by alcohol abuse).

(Tribunal’s emphasis in italics, my emphasis in bold.)

89    As the primary judge observed, consideration of those matters was an aspect of the Tribunal’s consideration of “the risk to the Australian community should the [appellant] commit further offences or engage in other serious conduct”: see PJ [88]-[93].

90    The Tribunal’s consideration of that topic is explained by “Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA” (dated 7 June 2024, commenced 21 June 2024) (Direction 110), which the Tribunal sought to apply.

91    Direction 110 is given force by operation of s 499 of the Act which relevantly provides:

(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.

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

92    The “protection of the Australian community from criminal or other serious conduct” is one of the five “primary considerations” which Direction 110 requires decision-makers to consider: cl 8 of Direction 110. Consistent with the relevant clauses of Direction 110 (particularly 8.1(2), 8.1.1 and 8.1.2), when considering that primary consideration, the Tribunal considered both:

(1)    the nature and seriousness of the appellant’s conduct to date; and

(2)    the risk to the Australian community, should the appellant commit further offences or engage in other serious conduct.

93    The Tribunal’s statement at paragraph [105] was made in the course of the Tribunal’s reasoning on risk, dealing more specifically with the connection between the appellant’s propensity to reoffend, and his drinking. In finding that that involved illogical reasoning, the primary judge said this at paragraphs [91]-[93]:

I reject the Minister’s argument that the concern the Tribunal’s observation was directed to was that the [appellant] had recommenced drinking and this could progress into heavy drinking, taking a moderate risk to something higher. I also reject the Minister’s submission that the Tribunal was referring to the [appellant’s] uncertain immigration status continuing to affect him even were he to be restored to his child visa (ie the “hangover” argument referred to at paragraph 84 above). Neither construction is open on a fair reading of the Tribunal’s reasons. The Tribunal’s impugned reasoning was clearly expressing the Tribunal’s concern that the [appellant] “has the potential to resume heavy drinking again”, particularly given the stress of his uncertain immigration status, along with his limited support from family or friends, and returning to heavy drinking would elevate his risk of reoffending. The impugned observations of the Tribunal were directed to factors that were at least part of the reason why the Tribunal remained concerned that the [appellant] would resume drinking heavily, and were directed to the future.

As the task the Tribunal was applying itself to was an assessment of the risk to the Australian community, were the [appellant] to reoffend, that exercise logically had to be predicated on the [appellant] remaining in Australia by reason of the cancellation of his child visa having been revoked. In that circumstance, and within the bounds of the matters before the Tribunal, there would not be any continued uncertainty about the [appellant’s] visa status that could or would contribute to the potential for the [appellant] to resume drinking heavily.

It was clearly illogical for the Tribunal to have regard to “the stress of his uncertain immigration status” in considering the risk of the [appellant] reoffending.

94    The “hangover” argument was described by the primary judge at paragraph [84] in these terms:

[T]he Minister submitted that taking into account the stress arising from the [appellant’s] uncertain immigration status was not unreasonable, irrational or illogical because, even if the cancellation of the [appellant’s] child visa were ultimately to be revoked by the Tribunal, the associated stress “would not necessarily automatically cease to be a factor in the [appellant’s] risk profile”. In oral submissions, the Minister contended that the Tribunal’s reference (at T [105]) to “the stress of [the appellant’s] uncertain immigration status” being part of the reason the Tribunal was concerned that the [appellant] had the potential to resume heavy drinking could fairly be read as a reference to the “hangover” or ongoing effect that uncertainty regarding his immigration status may have on the [appellant’s] drinking. On this reading, the Tribunal was expressing a concern that even if the cancellation of the [appellant’s] child visa were revoked, the stress of his immigration situation may continue to have an influence on the [appellant], raising the prospect of his returning to heavy drinking.

95    Before us, the Minister relied on a similar form of that argument.

96    The Minister also sought to buttress his argument by reference to contextual material before the Tribunal. In particular, the Minister relied on a report prepared by Ms Bovenkerk, a forensic psychologist, dated 9 February 2024, being a report adduced by the appellant (Ms Bovenkerk’s report). In her report, Ms Bovenkerk recorded at paragraphs [100] and [121] that:

[The appellant] denied recent alcohol consumption, identifying that this would be counterproductive to the progress he has made. He stated that drinking alcohol was “squandering” his capacity to be productive.

…

[The appellant] demonstrated insight and understanding that his offending behaviour was associated with his alcohol consumption. He reported that he tried periods of abstaining from alcohol, which lasted for a month or two. He described his behaviour in extremes, noting that he was either abstaining from alcohol or engaging in binge drinking. He stated that if he consumed one alcoholic beverage, this would “spark a bender” and lead to feelings of guilt for lapsing into alcohol use.

97    Later in her report, Ms Bovenkerk refers to having conducted a “risk assessment” by reference to the “Risk for Sexual Violence Protocol” (RSVP). She described the RSVP as a “set of structured professional guidelines used to assist an assessor in determining an individual’s risk of sexual violence” which was “designed for use with adult males aged 18 years and above with a known or suspected history of sexual offending”: see Ms Bovenkerk’s report at [180].

98    Ms Bovenkerk described the results of that assessment at paragraphs [185]-[188] as follows:

Overall, a review of the factors considered by the RSVP identified a number of risk factors connected to [the appellant’s] offending. Of most relevance are his difficulties within the psychological and social adjustment domains, including his significant intimacy deficits, problems within his interpersonal relationships, poor coping skills, and long-term unemployment. Collectively, these factors are considered to increase his vulnerability towards sexual reoffending.

Taking into consideration the structured professional judgment examining individual risk factors, [the appellant] is assessed as falling into the moderate risk category of sexual recidivism (based on the available information). This means that he is in a category that poses a risk that is comparable with that of the average sexual offender. He therefore requires a moderate level of case prioritisation with respect to supervision frequency and intensity, monitoring, case management, and treatment to assist in managing the risk of future sexual violence.

[The appellant’s] risk would increase if he were to relapse into alcohol use and disengaged from his treatment providers. If there was an update to his dynamic (i.e., current, and changeable) risk factors, it is recommended that the RSVP be readministered.

Protective factors for [the appellant] include the absence of sexual deviancy, his willingness and commitment to engage with mental health and alcohol treatment, his current abstinence from alcohol, support from his father, and lack of association with antisocial peers. [The appellant’s] participation in offence-specific treatment is likely to have a further mitigating effect on his risk profile.

99    Later, under the heading “Psychological Opinion”, Ms Bovenkerk said this at paragraph [215]:

It would be premature to opine that [the appellant] is fully rehabilitated given he has remained in immigration detention and has not yet had … the opportunity outside of a controlled environment to prove his ongoing abstinence from alcohol, which was a significant contributing factor in his offending. He also presents as a psychologically complex individual, with his personality features and associated interpersonal style requiring long-term engagement in treatment to improve his general functioning.

100    As the Minister observed, the Tribunal plainly had regard to what was said by Ms Bovenkerk, including about the risks associated with alcohol: see Tribunal’s reasons at [70]-[81]. At paragraph [78] of its reasons, for example, the Tribunal said:

In relation to a risk assessment of the [appellant], Ms Bovenkerk considered that overall, taking into account a range of factors set out for risk assessment, the [appellant] was at moderate risk of sexual offence recidivism, a risk that would increase if he were to relapse into alcohol use and disengage from his treatment providers. Risk factors included his difficulties with ‘psychological and social adjustment domains, including his significant intimacy deficits, problems within his interpersonal relationships, poor coping skills, and long-term unemployment. Collectively, these factors are considered to increase his vulnerability towards sexual reoffending’. In contrast, protective factors were considered to include ‘the absence of sexual deviancy, the [appellant’s] willingness and commitment to engage with mental health and alcohol treatment, his current abstinence from alcohol, and support from his father, and lack of association with antisocial peers’. She noted that if he were able to participate in offence-specific treatment, this would also likely further mitigate the [appellant’s] risk profile.

101    At paragraph [96], the Tribunal returned to that evidence:

The [appellant] provided documentary evidence, including reports, of his treatment with his AOD counsellor, Mr Witting, and his two psychologists, Ms Bovenkerk (seen for two extended sessions) and Ms Mattia (seen on an ongoing basis). They all refer to the [appellant’s] willingness to engage with them and to address his various issues. As noted above, however, Ms Bovenkerk identified that the [appellant] had a moderate risk of reoffending and that this would be higher still if he used alcohol and/or found himself in unstable and/or stressful circumstances (such as being in insecure accommodation and/or employment).

102    Then, at paragraph [98] of its reasons, the Tribunal referred to evidence given by the appellant in cross-examination:

In cross-examination, the [appellant] gave evidence that he did not drink while in jail or in immigration detention but that since being released from immigration detention, he had been drinking again on weekends. He estimated that he would have five or six standard drinks in a session, usually at a bar or nightclub, and stated that he generally stuck to beer (rather than cheap wine, which he had previously drunk when his drinking was at its most severe). When questioned about his confidence that he would not relapse into heavy alcohol use again, and thus increase his risk of reoffending, the [appellant] said that he had considered remaining completely abstinent upon his release from immigration detention but that his counsellors to date had not suggested that he must do so. However, it was something that they planned to discuss in future. He said that he had focussed on developing strategies to manage his drinking (being the relapse prevention plan and ongoing counselling) and so far, he had been able to avoid drinking heavily. The [appellant] told the Tribunal that one of the issues he had been addressing was ‘black and white’ thinking; that is, thinking that he was either a heavy drinker or could not drink at all, while the counsellors had effectively told him not to put such pressure on himself, and that if he did drink, he needed to use the strategies he had discussed with them to manage this safely.

103    In the Minister’s submission, that put in context all that followed, including paragraph [105] of the Tribunal’s reasons (which was the focus of the appellant’s challenge before the primary judge). The Tribunal accepted that the appellant had “made genuine efforts while in jail and immigration detention to address his personal issues, notably, but not only, his alcohol use and that he did not drink for approximately two years while in jail and immigration detention” and also accepted other aspects of the appellant’s case regarding his rehabilitative efforts: see Tribunal’s reasons [102]. The Tribunal said that it gave “these efforts, and the [appellant’s] relatively young age (indicating that he has the potential for change) some weight in favour of revoking the cancellation of his Subclass 101 (Child) visa”: see Tribunal’s reasons [102].

104    But the Tribunal immediately went on, at paragraph [103], to observe that it was “concerned about the durability of the [appellant’s] rehabilitation efforts”, for the following reasons:

•    he has only been out of immigration detention for approximately two months, which is a short period on which to assess the extent to which he does or does not face a risk of relapse and therefore a risk of reoffending;

•    he has chosen to drink again. Moreover, he has chosen to do so in circumstances which have been identified as being stressors which could or would contribute to risky drinking and offending in the past, including unstable accommodation and lack of emotional support from family, friends and/or a partner;

•    he has had a number of failed attempts to give up drinking heavily in the past. Drinking heavily is acknowledged by the [appellant], and the professionals who have interacted with him, to be a major cause of his offending in the past.

105    As regards the second and third dot points, the Minister noted in his written submissions that the Tribunal had earlier observed that heavy drinking had been acknowledged by both the appellant and professionals to be a major cause of his offending. The Minister also sought to emphasise that paragraph [103] of the Tribunal’s reasons demonstrated that there were a number of strands to the Tribunal’s concerns about the durability of the appellant’s rehabilitation, which went beyond those matters mentioned in paragraph [105].

106    Staying with the Tribunal’s reasons, the Tribunal went on to observe at paragraph [104] that while there was “nothing illegal about the [appellant’s] current level of alcohol use”, it was “nevertheless of concern to the Tribunal that he has resumed drinking given his previous problems with heavy drinking and its link to his offending”. All of that formed the backdrop for what was then said at paragraph [105], which the Minister (quite correctly) said needed to be read with the other aspects of the reasons as a whole.

107    None of that is particularly controversial. But nor does it very much assist the Minister in contending that the primary judge erred in finding that it was illogical for the Tribunal to have regard to “the stress of [the appellant’s] uncertain immigration status”. None of the matters relied upon squarely addresses the fundamental difficulty identified by her Honour with the Tribunal’s reasoning at paragraph [105], namely that:

(1)    the entire exercise logically had to be predicated on the appellant remaining in Australia, following the revocation of the cancellation of his child visa (see again PJ [92]); and

(2)    in those circumstances, there simply would not be any continued uncertainty about the appellant’s visa status that could or would contribute to the potential for the appellant to resume drinking heavily (ibid).

108    The real burden of the Minister’s excursion through that material appeared to be directed to his submissions on ground 1 (which I address below). But it is important to be clear that none of that could be an answer, in and of itself, to the deficiency identified by the primary judge in her reasons at paragraphs [91]-[93].

109    It is important to be clear as to those matters because they lay bare that the Minister’s real answer to that deficiency lay principally in his “hangover” argument. Before us in oral address, the Minister put that as being a “reasonable appreciation of human experience” to which the Tribunal was entitled to have regard, being that:

[P]sychological stress as a matter of common human experience is a dynamic matter, and that that aspect of its dynamic quality may or may not have a hard ending, let alone one which is entirely coincident with the ceasing of a stressor…

The stress of work may not immediately cease on the first day of a holiday. The stress of a robbery or a burglary might not immediately cease on the passing of the event and the attendance of police. Here we have someone who was undoubtedly significantly stressed about his migration situation and had been for two and a half years [referring to the time between the primary decision cancelling his child visa in July 2022 and the hearing before the Tribunal in December 2024].

110    According to the Minister, that “reasonable appreciation of human experience” was borne out by the following aspects of the evidence in Ms Bovenkerk’s report:

(1)    At paragraph [77], Ms Bovenkerk relevantly said this:

… [The appellant] was concluded to have a mild mental health problem, with symptoms of low mood, anxiety, poor sleep and nightmares “in the context of his legal circumstance and history of attachment trauma”. He was recommended to engage in substance use treatment and psychological intervention.

(2)    At paragraphs [83]-[84], Ms Bovenkerk said this:

At present, [the appellant] reported that his mood is more “stable” and he is not currently prescribed psychotropic medication. [The appellant] reported that he was prescribed antidepressant medication in custody after learning that his visa was cancelled. He was unable to recall the name of the medication and stated that he ceased taking it “many months ago”.

[The appellant] identified feeling “so sad” when he thinks about his current circumstances. He reported thinking about the prospect of deportation with uncertainty in relation to his financial situation and lack of family support triggers his anxiety. He commented that he was motivated to “try to ensure that when I get out of here I'm in a better position than when I came in”.

(3)    At paragraph [131], Ms Bovenkerk said this:

At the outset of the appointment, [the appellant] identified feeling anxious, which was consistent with his affect. [The appellant’s] mood was described to be predominantly anxious and stressed with some low mood due to his circumstances and the uncertainty facing him in regards to his visa and his future in Australia. He denied any current suicidal ideation, plan or intent.

(4)    At paragraph [227], Ms Bovenkerk said this:

[The appellant] would benefit from ongoing psychological treatment of his mental health, including addressing his symptoms of depression, anxiety, and trauma, particularly if they do not resolve once his visa matter is finalised. [The appellant] is currently engaged in treatment with a psychologist (with forensic experience) who can assist him to improve his general capacity to cope with stressors/tolerate distress, effective emotional regulation, improve his social skills, build his self-confidence, address his intimacy deficits, as well as his own beliefs about himself which have implications for his social engagement, self-esteem, and confidence, and in turn affect his depression and anxiety symptoms. The relationship of these to the offending and capacity to conduct offence-specific treatment is also a future treatment target once his mental health has been further stabilised.

111    All of that, it was said, was reason to prefer the Minister’s construction of the Tribunal’s reasons at paragraph [105]: namely, that even on the assumption of a favourable decision, the stress occasioned by that stressor may nonetheless endure for a period of time.

112    However, the essential difficulty with that submission is that it does not reflect how the Tribunal in fact reasoned, whether by reference to Ms Bovenkerk’s report or to any “reasonable appreciation of human experience”.

113    In this regard, it is well established that, in order to understand why a statutory power was exercised as it was, one must look to the reasons given for the decision: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 446-447 [47] (Allsop CJ, Robertson and Mortimer JJ); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81, 89-91 [35](3) and 94-95 [57] (Charlesworth J, Flick and Perry JJ agreeing), citing Singh at [47]; Tran v Minister for Immigration and Border Protection [2019] FCAFC 126, [173] (Charlesworth and O’Callaghan JJ), quoting Muggeridge at [35]-[36]; Raibevu v Minister for Home Affairs [2020] FCAFC 35, [67] (Perram, Markovic and Charlesworth JJ), quoting Muggeridge; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [49] (Kenny and Mortimer JJ) citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10] (Gleeson CJ), [44] (Gaudron J), [69] (McHugh, Gummow and Hayne JJ).

114    Here, the Tribunal’s reasons do not disclose that it proceeded on the basis that the appellant’s uncertain immigration status would continue to affect him even in the event of a favourable decision. As the primary judge (correctly) observed at paragraph [91], a fair reading of the Tribunal’s reasons does not support any such suggestion. Rather, the Minister is inviting the Court to speculate as to matters that may or may not have been in the mind of the Tribunal, in circumstances where the reasons themselves give no indication that it in fact engaged in that path of reasoning. Nor does it advance the analysis to point to material before the Tribunal that could have supported that path of reasoning, where the Tribunal itself did not adopt it: see again Muggeridge (2017) 255 FCR 81, 94-95 [57].

115    For those reasons, I would not uphold the Minister’s notice of contention. In my view, the primary judge was entirely correct in her reasoning at paragraphs [91]-[93].

116    It follows that ground 1 must be considered.

4.    AN ISSUE NOT PURSUED BEFORE US

117    Before I go on to consider ground 1, I pause to note that there has been some debate in this Court as to the question of whether illogicality in the making of a finding of fact – even if it be a “critical” finding of fact – is necessarily a matter going to jurisdiction.

118    In particular, in Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277 at [54] (set out below), the Full Court (Markovic, Meagher and Kennett JJ) queried, without deciding, whether such a proposition was consistent with Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21.

In making the last of these points his Honour referred to a statement by Wigney J in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [55], which was approved in Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Charlesworth J, with whom Flick and Perry JJ agreed), to the effect that illogical reasoning will not go to jurisdiction “if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result”. To the extent that this approach envisages irrationality in the course of making a particular finding of fact as potentially going to jurisdiction, subject to that fact being “critical”, it may represent a different approach to the present issue from the one formulated in Djokovic (cf SZMDS at [53] (Gummow ACJ and Kiefel J) and Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALJR 464 at [43] (Gordon J)). However, the controversy, if there is one, need not be resolved for present purposes. The impugned finding at [44] of the Minister’s Decision was open to the Minister, and was not on any view “critical” to her decision. It was part of a matrix of facts leading to the cautiously-expressed conclusion at [51]-[53] concerning the risk of further offending which, in turn, was weighed with other relevant factors. The error was a simple lapse in analysing the evidence which has not been shown to have caused a wrong factual finding, let alone a decision that was beyond power.

119    Also in obiter, Hill J expressed the view that illogicality in the course of making a “critical” finding of fact could be a matter going to jurisdiction. In EUD24 v Minister for Immigration and Citizenship (2025) 311 FCR 155, his Honour observed at [35]-[36] that:

In this case, the appellant does not contend that the ultimate outcome was unreasonable, but that certain critical findings of fact were. In Masi-Haini at [54], the Full Court queried, without deciding, whether it was consistent with Djokovic to treat illogicality in the course of making a “critical” finding of fact as a matter going to jurisdiction. In my view, it is: the arguments considered in Djokovic included arguments that there was a lack of evidence or material upon which to found central conclusions of fact within the process of reaching a relevant state of satisfaction: see Djokovic at [31]. Further, the “critical fact” approach is supported by statements by Crennan and Bell JJ that jurisdictional error may be able to be established on the basis of illogical or irrational findings “on the way” to the final conclusion: see Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (SZUXN) at [54] (Wigney J), citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [132]. This approach also promotes consistency with the closely related principles relating to legal unreasonableness, which applies to both the outcome of the decision and the process by which it is made (including the reasoning that led to that outcome): see Palmer at [101]; Minister for Immigration, Citizenship and Multicultural Affairs v Lieu (2023) 297 FCR 162 at [81] (Mortimer CJ).

To be clear, this does not mean that any illogical or irrational finding of fact will constitute jurisdictional error: jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: SZUXN at [55]; BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 26 at [29] (the Court); XRZG v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 305 FCR 349 at [63]-[64] (the Court). In this way, the “critical step” approach to the illogicality or irrationality ground has a built-in requirement of materiality, and can be readily accommodated with the High Court’s discussion of materiality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [6]: see Masi-Haini at [52]; VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983 at [108]-[109] (Button J).

120    Those views were expressed by Hill J as a member of the Full Court, although the other members of the Full Court (Cheeseman and Owens JJ) found it unnecessary to express any view on those matters: see EUD24 (2025) 311 FCR 155 at [5].

121    Likewise, I do not need to resolve the uncertainty (if any) as to those issues because the Minister proceeded on the basis that at least some errors involving irrationality in the course of making a particular finding of fact would potentially go to jurisdiction. As I discuss below, the controversy between the parties concerned the circumstances in which that would be so. Accordingly, the resolution of the possible issues identified in Masi-Haini (2023) 298 FCR 277 ought to wait for a matter in which they arise squarely for determination.

5.    GROUND 1 – THE “CRITICAL FACT” ISSUE

122    By ground 1, the appellant contends that the primary judge erred by failing to find that the Tribunal made a material error in assessing the appellant’s risk of re-offending by reference to the “stress of his uncertain immigration status”.

123    The key issue between the parties on ground 1 was the relationship between:

(1)    the suggestion in some authorities that irrationality or illogicality in the course of making a particular finding of fact will only go to jurisdiction if that fact can be characterised as “critical” or “central” to the ultimate decision; and

(2)    the requirement that any error be a “material error” in the sense discussed in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321.

124    In the appellant’s submissions (AS), “critical” in the sense used in authorities such as Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Muggeridge (2017) 255 FCR 81, Masi-Haini (2023) 298 FCR 277 and XRZG v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 305 FCR 349, was a “synonym for ‘material’ – the latter having since been explained in detail by the High Court in LPDT” (see AS [14]). On that view, this matter fell within the description in LPDT (2024) 280 CLR 321 of “most cases”, where an error will be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: see LPDT at [7], [36] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); AS [18]. It was further argued that the primary judge had erred by requiring, in addition, that the “illogicality in the Tribunal’s reasoning was in respect of a matter that was central to the ultimate decision”: PJ [109] (emphasis added) – see also PJ [111] – observing that that reasoning had not been shown to be “otherwise critical” to the Tribunal’s decision.

125    The Minister, on the other hand, submitted that the first step is the characterisation of the error with a view to determining whether it was “critical” to the ultimate decision: see Minister’s Submissions (RS) at [18]. If the error was “critical”, it would then be necessary to determine whether the error met the further threshold of materiality: see RS [20.4]. However, the Minister accepted that, having identified an illogicality which is “critical to” the ultimate decision, the error will “likely” be material (referring to XRZG at [65], where it was observed that “if a finding of fact for which there was no probative basis was critical to the Tribunal’s ultimate decision, the threshold of materiality is likely to be easily met”): RS [21]. In other words, this was said to be an example of one of the categories of cases discussed in LPDT (2024) 280 CLR 321 at [6] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) in which the “potential for an effect on the decision will be inherent in the nature of the error”.

126    It is possible that Hill J had in mind a similar approach in EUD24 (2025) 311 FCR 155 at [35]-[36], although his Honour was not required to resolve that issue and does not appear to have had the benefit of the concrete argument that took place before us.

127    A similar observation can be seen in Minister for Immigration and Multicultural Affairs v SSVJ (2026) 315 FCR 435 at [50] (Perry, Kennett and Shariff JJ) – a decision handed down after we heard this appeal:

In the light of Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; 298 FCR 277 at [49]-[52] (Markovic, Meagher and Kennett JJ) and Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [35(6)] (Charlesworth J, with whom Flick and Perry JJ agreed), we doubt whether “materiality” (in the sense discussed in cases such as MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506) is the right frame of reference in a case where irrationality is alleged. That is because, at least arguably, “irrational” is a characterisation that must be applied to the ultimate state of satisfaction and therefore has a (relatively stringent) requirement of materiality built into it. However, it is not necessary to pursue that question here. No argument was advanced to the effect that the impugned finding was not sufficiently central to the formation of the Minister’s state of satisfaction concerning the national interest to result in jurisdictional error. The finding as to a lack of rehabilitation was a significant element in the chain of reasoning leading to that state of satisfaction, and that state of satisfaction therefore cannot be said to have been “based on findings or inferences of fact supported by logical grounds”.

128    Again, it is clear that those observations were obiter and were made without the benefit of argument on the issue. In contrast, the point crystallised in this appeal and requires resolution.

129    The ultimate point of the Minister’s submission as advanced before us was that the “critical fact” analysis was far more onerous for the appellant than the materiality threshold which applies to “most cases” discussed in LPDT (2024) 280 CLR 321 at [7] and which (according to the Minister) was not satisfied here.

130    Here, as before the primary judge, the Minister explained his proposed approach as follows:

[The “critical fact” analysis] is a front end analysis, as opposed to the back end analysis of materiality, which is a matter which is only considered when the Minister puts it in issue and otherwise works on the premise that some actionable error has otherwise been committed. In this analysis, the criticality is an element of the error itself and irrational reasoning or fact finding, so far as intermediate factual findings and reasoning are concerned, is not a matter which is presumptively actionable unless it actually relates to a critical matter.

131    For reasons set out below, that approach is in some tension with the High Court’s explanation of the materiality analysis and the principles that underlie that analysis.

5.1    General principles underlying the current materiality analysis

132    The emergence of the High Court’s current approach to materiality was anchored in the seminal work of Professor Louis L Jaffe, whose insight was that the word “jurisdiction” in this area is not used as a “metaphysical absolute but simply expresses the gravity of the error”: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 130-131 [18]-[19] (Kiefel CJ, Gageler and Keane JJ), citing Jaffe ‘Judicial Review: Constitutional and Jurisdictional Fact’ (1957) 70 Harvard Law Review 953, 963. A similar point had been made earlier by the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [64] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) and by Robertson J in this Court in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [79] and [98].

133    Reflecting that observation, jurisdictional error, in a generic sense, refers to “a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it”: see Hossain (2018) 264 CLR 123 at [24] (Kiefel CJ, Gageler and Keane JJ) (emphasis added); see also Kirk (2010) 239 CLR 531 at [64]. The emphasised words (“to an extent”) cohere with Professor Jaffe’s observation about the “almost entirely functional” nature of the language of jurisdiction in this area: see Hossain at [18]; see also Kirk at [64], citing Jaffe at 963. Put bluntly, it is used to validate review when review is felt to be necessary.

134    It is also important to observe that all aspects of that inquiry ultimately depend upon the proper construction of the statute. Just as identification of the preconditions to, and conditions on, the exercise of a statutory decision-making power turns on the construction of the statute, so too does the determination of the extent of non-compliance that will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect under the statute: see Hossain (2018) 264 CLR 123 at [27] (Kiefel CJ, Gageler and Keane JJ); see also LPDT (2024) 280 CLR 321 at [4]-[5] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). That task of construction is informed by established common law principles, which themselves reflect “longstanding qualitative judgments about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary”: see Hossain at [28] (Kiefel CJ, Gageler and Keane JJ) and [64] (Edelman J); see also MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [32] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

135    Materiality is a particular manifestation of that conceptual approach and an example of one such common law principle of construction. It is one which is directed to identifying which breaches of conditions on the exercise of power are of sufficient gravity or extent to deny a particular decision legal force and effect: see Hossain (2018) 264 CLR 123 at [24], [27]; see also SZRKT (2013) 212 FCR 99 at [98]. Ordinarily, a statute that impliedly requires a condition to be observed in the course of a decision-making process “is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition”: see Hossain at [29] (Kiefel CJ, Gageler, Keane and Gleeson JJ). Rather, “[t]he statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”: see Hossain at [29]; see also MZAPC (2021) 273 CLR 506 at [31] (Kiefel CJ, Gageler, Keane and Gleeson JJ). Although the relevant threshold was not precisely articulated in Hossain – see MZAPC at [34] (Kiefel CJ, Gageler, Keane and Gleeson JJ) – it has been further explained in decisions since, culminating (most recently) with LPDT (2024) 280 CLR 321.

136    By reason of “the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision”, it is (to the profound regret of some practitioners who much prefer bright lines) “impossible to divine a rigid classification of the errors that constitute jurisdictional errors”: LPDT (2024) 280 CLR 321 at [5] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). Instead, the nature of the error must be “worked out in each case concerning a specific decision under a particular statute”: see LPDT at [5], citing MZAPC (2021) 273 CLR 506 at [101] (Gordon and Steward JJ).

5.2    Is the “critical fact” analysis separate from materiality?

137    That puts in context some of the earlier authorities of this Court dealing with irrational or illogical fact finding and the so-called “critical fact” analysis.

138    The putative error in this matter is based on the contention (accepted by the primary judge and the subject of the Minister’s notice of contention) that the evaluative conclusion reached by the Tribunal in the exercise of the discretion under s 501CA(4) of the Act – see LPDT (2024) 280 CLR 321 at [33]-[35] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) – was not arrived at by a process of reasoning that conformed to basic notions of rationality. As the Full Court noted in SSVJ (2026) 315 FCR 435 at [20] (Perry, Kennett and Shariff JJ), the requirement that a decision do so is an aspect of “the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject matter, scope and purposes of the statute” (citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [90] (Gageler J) (original emphasis)). It is, in other words, an example of a condition that is routinely implied in the context of statutory powers, in the absence of a contrary intention.

139    It is also important for present purposes to appreciate that that generally implied statutory condition on power is concerned with whether it was “open to the [decision-maker] to engage in the process of reasoning in which it did engage”: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [133] (Crennan and Bell JJ) (emphasis added); see also Li (2013) 249 CLR 332 at [105] (Gageler J); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [80]-[82] (Nettle and Gordon JJ); Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644 at [31], [43] (Gordon J); SZUXN (2016) 69 AAR 210 at [49] (Wigney J).

140    Yet, as has been repeatedly emphasised in the authorities, a conclusion that the process of reasoning has misfired in that way is not necessarily sufficient to constitute jurisdictional error. As such, “[n]ot every lapse in logic will give rise to jurisdictional error” and the Court “should be slow, although not unwilling, to interfere in an appropriate case”: see eg SZMDS (2010) 240 CLR 611 at [130] (Crennan and Bell JJ); Djokovic (2022) 289 FCR 21 at [34] (Allsop CJ, Besanko and O’Callaghan JJ); see also PJ at [96], [99].

141    The reason for that avowedly cautious approach lies in the (often observed) fact that assertions of illogicality and irrationality “can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision”: SZUXN (2016) 69 AAR 210 at [56] (Wigney J), referring to SZMDS (2010) 240 CLR 611 at [96] (Crennan and Bell JJ); Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, Thomson Reuters, 2021) at [5.350]. That, in turn, reflects a deeper concern, with constitutional roots, that the Court is not impermissibly drawn into the area of merits review in the guise of judicial review: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-38 (Brennan J); see also Tsvetnenko v United States (2019) 269 FCR 225 at [70] (Besanko, Banks-Smith and Colvin JJ).

142    That was the point made by a Full Court of this Court in Djokovic (2022) 289 FCR 21 at [34] (Allsop CJ, Besanko and O’Callaghan JJ):

Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction … [T]he evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

143    Returning to Professor Jaffe’s observation, the line to be drawn thus involves an evaluation of the extent or gravity of the error: that is, is the particular putative irrationality or illogicality sufficient to give rise to jurisdictional error: see eg SZMDS (2010) 240 CLR 611 at [130] (Crennan and Bell JJ).

144    One aspect of that is the insistence that the requisite level of irrationality or illogicality is high or (as sometimes put) “extreme”: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [47] (Griffiths, Perry and Bromwich JJ); DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30](5) (Kenny, Kerr and Perry JJ); King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152 at [55] (Anderson, Feutrill and Raper JJ). It is not enough that the question of fact is one on which reasonable minds may come to different conclusions: SZRKT (2013) 212 FCR 99 at [148] (Robertson J). The relevant departure from the required procedural norms must involve more than that.

145    The “critical fact” analysis is a convenient term or analytical tool capturing another aspect of the evaluation of the gravity or extent of an error. It proceeds from the premise that illogicality or irrationality in the course of making a particular factual finding (even if high or “extreme”) is not, in and of itself, sufficient to deny legal force and effect to the relevant decision. Rather, as McKerracher J observed in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at [85] (Reeves J relevantly agreeing at [112]-[116]), “[i]t must be such as to affect the decision” (emphasis added). Or, as Wigney J observed in SZUXN (2016) 69 AAR 210 at [49], a decision “based on, or flowing from, irrational and illogical reasoning or factual findings” (emphasis added) is likely to be beyond power by reason of a breach of such a condition.

146    Understood in those terms, the point of such an inquiry is to determine whether the error would (or perhaps could) have made a difference (perhaps a “critical” difference) to the decision that was made in the circumstances in which it was made. In putting it that way, I have deliberately adapted the language used in Hossain (2018) 264 CLR 123 at [30] (Kiefel CJ, Gageler and Keane JJ), which describes (at an appropriate level of generality) the broad contours of the materiality inquiry. Putting it in those terms illustrates that, leaving aside the choice between “would” and “could” and the extent to which the error can be said to have affected the ultimate decision (that is, whether it must be “critical” or important to it), the “critical fact” and materiality inquiries are functionally similar.

147    As the appellant observed, that commonality is reflected in the sometimes-interchangeable use of the terms, “material” and “critical”, in the Federal Court authorities dealing with this issue prior to Hossain (2018) 264 CLR 123. For instance, in SZUXN (2016) 69 AAR 210 at [55] (cited with approval in Muggeridge at [35](6)), Wigney J observes that, “[e]ven if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result” (emphasis added). Notably, one of the authorities his Honour referred to for that proposition was Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J), a passage which was later explained by Robertson J as an example of where “irrationality in respect of one finding is immaterial given other findings” (emphasis added): SZRKT (2013) 212 FCR 99 at [158].

148    The Minister argued that those references to materiality were uttered at a time that preceded the High Court’s further explication of that concept in the line of authority starting with Hossain (2018) 264 CLR 123.

149    That is true, but as is apparent from the High Court’s analysis of earlier authority, the broad shape of the inquiry did not seismically shift with the advent of Hossain: see, in the context of procedural fairness, the discussion of Stead v State Government Insurance Commission (1986) 161 CLR 141, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 in MZAPC (2021) 273 CLR 506 at [45]–[60] (Kiefel CJ, Gageler, Keane and Gleeson JJ) and see also the history traced in Aronson at [3.100]. Undoubtedly, there remained at that time “large questions” that have more recently been clarified and refined, including whether the decisions concerning materiality could be “generalised”: see Aronson at [3.100]. Nevertheless, at least in this area, it was understood that a form of materiality analysis was an important part of the question of whether there was jurisdictional error.

150    If that is so, it follows that this is not, in fact, an example of a case where materiality is inherent in the nature of the error: cf LPDT (2024) 280 CLR 321 at [6] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) (citing MZAPC (2021) 273 CLR 506 at [33]). That has in mind the quite different example of “unreasonableness in the final result”: LPDT at [6]. In referring to that example contained in MZAPC at [33], Kiefel CJ, Gageler, Keane and Gleeson JJ referred (with apparent approval) to a decision of this Court in Tsvetnenko (2019) 269 FCR 225 at [96]-[101].

151    And, as Besanko, Banks-Smith and Colvin JJ explained at paragraph [96] in Tsvetnenko:

[I]t is illogical to speak of the extent of non-compliance with an implied obligation to make a decision that is reasonable. It is not possible to conceive of an instance in which it might be demonstrated that the decision itself is unreasonable, but not in a material way.

152    In contrast, and in that very same paragraph, their Honours observed that:

[I]n a case where unreasonableness is sought to be demonstrated by reference to the reasons given by the decision-maker the application of the requirement for materiality involves a consideration as part of evaluating whether the decision is unreasonable as to whether any illogicality or other defect in the reasoning was material to the decision.

153    The Court in Tsvetnenko went on to illustrate that proposition (at [97]) with a passage extracted from CGA15 v Minister for Home Affairs and Another (2019) 268 FCR 362 where Murphy, Mortimer and O’Callaghan JJ said this at [59]:

Before characterising the illogical or irrational reasoning, or conclusion, as an error going to the jurisdiction of the decision-maker, it is necessary for the Court to be satisfied that the illogical or irrational reasoning was “material” to the ultimate decision, in the sense that it deprived the appellant of the realistic possibility of a successful outcome.

154    I will return to CGA15 below.

155    And so, unlike cases concerned with unreasonableness in the final result, cases involving illogicality or irrationality in the reasoning (such as this case) have long been understood to require a separate form of materiality analysis, applied with some vigilance. That vigilance reflects, at least in part, an acute concern to avoid impermissibly straying into merits review.

156    That puts in perspective the Minister’s submission about the two inquiries involving a “front end analysis” (critical fact) and a “back end analysis” (materiality). As noted above, according to the Minister, that putative distinction posits that the critical fact analysis is an “element of the error itself” (or an aspect of the condition on power) making it “actionable”.

157    There are further difficulties with that suggested distinction to which I now turn.

5.3    Conceptual difficulties with the Minister’s approach

158    First, there is a degree of internal incoherence in the Minister’s submission when one considers what is bound up in the Minister’s “front end” (conditions on power) and “back end” (materiality) analyses.

159    As I have said, both the identification of the relevant conditions on power and the identification of the threshold of materiality in the event of non-compliance with those conditions rest upon the proper construction of the statute – informed by common law principles.

160    Those principles can be seen to be “a common-sense guide to what a Parliament in a liberal democracy is likely to have intended” and accommodate the limits of decision-making authority conferred by statute to the reality that “[d]ecision-making is a function of the real world”: MZAPC (2021) 273 CLR 506 at [32], citing Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at [21] (Gleeson CJ) and Hossain (2018) 264 CLR 123 at [28] (Kiefel CJ, Gageler and Keane JJ). While “subject always to being revisited”, they can be treated as “working hypothes[e]s … upon which statutory language will be interpreted”: MZAPC at [32] (working hypotheses which are known to both Parliament and the Courts: Electrolux at [21]).

161    Under the Minister’s proposed approach, the effect of the error upon the decision is said to be measured twice: once as an aspect of the condition on power; and once again at the materiality stage, albeit that the materiality inquiry “is likely to be easily met” (relying on what was said in obiter in XRZG (2024) 305 FCR 349 at [65] (Markovic, Cheeseman and Horan JJ)). As regards the latter inquiry, the Minister appeared to accept that that would fall to be determined by reference to the test applicable to “most cases” discussed in LPDT (2024) 280 CLR 321 at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ): being “that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred” (emphasis in original).

162    It is difficult to see why a “working hypothesis” of that nature ought to be applied (generally) to statutory language dealing with administrative decisions. What functional purpose, reflective of “common sense” and the “real world”, is served by that disjointed analysis? Why ought one ask how the error affected the ultimate decision, distinct from and anterior to the application of the now well-understood approach to materiality, and then ask a substantively similar question again at the “back end” (particularly when the latter test involves a lower and seemingly more readily satisfied threshold)?

163    The latter inquiry would seemingly serve no purpose at all.

164    The Minister sought to support that approach by reference to a functional argument, based upon the kinds of structural concerns I have noted above by reference to Quin (1990) 170 CLR 1 at 35, 37 (Brennan J). In particular, the Minister argued that the explanation for his two-stage approach lay in the idea that there ought to be:

… some further fetter on the court’s jurisdiction so as to preserve the true division between merits and judicial review by which the court demanded some further quality to the error beyond simply … the decision could have been different if this factual matter perhaps did not occur.

(Emphasis added.)

165    That may well have formed the basis for an argument for a more demanding materiality test: positing that the materiality threshold for this type of error is different to and higher than the test applicable to “most cases” discussed in LPDT (2024) 280 CLR 321 at [7]. Such an approach might be said to give real meaning to the legislative choice of committing the substantive task to another organ of government: see Aronson at [5.350]. On that view, it would be an implication drawn in most cases involving administrative decision-making powers conferred by statute where fact finding is necessary for the repository of power.

166    But that is not what the Minister contended for here. The Minister’s two-stage “front end/back end” approach seems to me to be an unnecessarily complicated analysis for no good reason. Why Parliament should be taken to have intended that convoluted two-stage inquiry (one limb of which appears to be largely otiose) is by no means apparent. I therefore do not accept that submission.

167    More fundamentally, and even if the Minister were to be understood as contending for a more demanding materiality test by reference to such considerations, that submission overlooks the point I have made above about the focal point of the relevant implied condition.

168    As I have said, this kind of challenge is concerned with the process of finding the facts rather than the merits: that is, “[t]he point of the successful challenge is the decision-maker’s irrationality”: see Aronson at [5.400] (and the authorities referred to above at [139]).

169    Because it is that flawed procedure in reaching a particular state of satisfaction that matters (and not the merits), the necessary premise for such a ground is that the ultimate decision may well “end up being the same, but better reasoned … when the matter is returned for decision”: see Aronson at [5.400]. That illustrates that it is irrelevant, for the purposes of such a putative error, whether a particular ultimate conclusion was or was not, in the Court’s view, capable of being described as “correct” on the available material. It is well-established that such questions are reserved for the repository of power: see eg MQGT v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 141 at [43] (Wheelahan, Jackson and Feutrill JJ).

170    The difficulty with a more demanding materiality test expressed by reference to what is “critical” or “central” to the ultimate decision is that such an analysis does risk the Court assuming the function of the decision-maker. That is, it potentially falls into the very trap the Minister suggested the analysis was designed to avoid. Labelling a fact “critical” or “central” – if that be intended to require some close consideration of whether the decision would have been different in the absence of the illogical or irrational reasoning – risks crossing the line between judicial review and merits review: LPDT at [15] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ), [36] (Beech-Jones J); Smith v Minister for Immigration, Citizenship and Multicultural Affairs (2025) 88 AAR 83 at [29] (Colvin, Anderson and Owens JJ).

171    That line between judicial review and merits review must be maintained: LPDT (2024) 280 CLR 321 at [15] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). It is best maintained by accepting that the “critical fact” analysis has always been a convenient term for materiality and that therefore the applicable threshold is that identified in LPDT at [7]. Cleaving closely to those distinctions avoids the risk that the Court trespasses into fact-finding or subverts the legislative choice to commit that role to other organs of government. As I have noted above, that is also one of the reasons for insisting that the requisite level of irrationality or illogicality is high or “extreme”.

172    Notably, the concern with such “extreme” departures from the procedural norm of rationality and logicality has both normative and instrumental aspects, which bear some resemblance to the generally understood justifications for implying into statutes conditions concerning procedural fairness. As Allsop CJ observed of the related condition of legal reasonableness in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [9]-[11], this area is informed, in part, by “fundamental values” anchored in the common law tradition, including “a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual”: see also, referring to that statement, SZVFW (2018) 264 CLR 541 at [59] (Gageler J) (and see similarly, dealing with procedural fairness, International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 381 [144]-[145] (Heydon J) and Aronson at [8.30]). Further, the matters animating the implication of such a condition on power may be seen to include a concern that toleration of such profoundly flawed processes may give rise to unsound conclusions and generate justified feelings of resentment in those affected by the decision: see similarly, in the context of procedural fairness, Condon v Pompano Pty Ltd (2013) 252 CLR 38, 107 [186] (Gageler J); International Finance Trust, 380-381 [143], [145] (Heydon J); John v Rees [1970] Ch 345, 402 (Megarry J); Aronson at [8.20].

173    In those circumstances, there seems to me to be no reason to insist upon a threshold of materiality which exceeds that identified in LPDT (2024) 280 CLR 321 at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). If such an (extreme) error in process is made and there is a realistic possibility that the decision that was made in fact could have been different if that error had not occurred, it is difficult to see why, in principle, such an error is not jurisdictional (alongside other errors included in the category of “most cases” identified by the High Court in LPDT at [7], including a denial of procedural fairness – see eg Nathanson v Minister for Home Affairs (2022) 276 CLR 80 at [32]-[33] and [45]-[47]).

174    One can test that with the (admittedly colourful) example given by Aronson at [5.400]. Assume that a decisionmaker simply throws up their hands and decides a difficult factual question on the basis of a coin toss. Assume further that there is a realistic possibility that the ultimate decision that was made in fact could have been different if that (arbitrary) mechanism had not been employed, albeit that the factual finding does not meet some further requirement of being “critical” or “central” to that decision (if that is in fact different as a matter of substance to materiality – as to which see further below). Should the law treat a decision made using a profoundly flawed procedure of that nature as nevertheless having the characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it? Should it simply ignore those glaring flaws in the procedure even though their employment has at least potentially denied the subject of the decision a realistic possibility of a different outcome?

175    Surely not.

176    Yet that is the logical endpoint of the Minister’s argument (regardless of whether it is put as a two-stage inquiry or as a higher materiality threshold).

177    The Minister nevertheless argued that such a result was suggested by observations in XRZG (2024) 305 FCR 349 and in Masi-Haini (2023) 298 FCR 277 (which, in turn, drew upon earlier authorities of this Court). The Minister accepted that those observations were obiter and that XRZG was decided prior to LPDT (2024) 280 CLR 321. As I have noted above, SSVJ (2026) 315 FCR 435 contains a similar observation in obiter at [50].

178    It is my view that those observations and those authorities are better understood in the way I have explained above. The primary judge had similar reservations to my own as to whether the proposition the Minister sought to draw from those authorities was “easy to reconcile with what the High Court said about materiality in LPDT”: PJ [99]. For the reasons I have already given, her Honour’s disquiet was well founded. However, quite properly, her Honour did not consider it appropriate to depart from what she understood to have been said in those decisions.

5.4    Previous authority

179    I turn then to the earlier authority of this Court upon which the Minister sought to rely.

180    There is not (contrary to the apparent assumption by the Minister) a large difference between the way the “critical fact” approach has been understood in decisions of this Court (particularly at the level of the Full Court) and the approach to materiality described by the High Court in LPDT (2024) 280 CLR 321 at [7]. As I have already foreshadowed, in that regard, I take a different approach to the Minister’s suggested reading of the observations in Masi-Haini and XRZG (2024) 305 FCR 349 (which the Minister accepted were obiter). I also take a different view of other authorities sought to be relied upon by the Minister. Notably (and fairly) the Minister did not contend that it was necessary for us to conclude that any decision of a Full Court was plainly wrong in order to accept the appellant’s argument.

181    The Minister put Masi-Haini (2023) 298 FCR 277 at [54] at the forefront of his argument. That matter involved another challenge to a decision of the Minister under s 501CA(4) of the Act.

182    The reason the Minister accepted that that excerpt at [54] of the decision he relied upon was obiter is explained by the Full Court’s discussion of that matter’s procedural history at [44]-[46]. At the hearing, the appellant in Masi-Haini sought to reformulate the point as one of illogical reasoning rather than “no evidence”. However, as the Full Court observed at [46], that did “not reflect the terms of the originating application, the primary judge’s finding or the notice of appeal”. That shift required, as the Full Court said at [46], an amendment “because it involves a proposition that the primary judge should have made a finding (ie as to illogical reasoning) that he did not make”. And, absent an amendment, the respondent had a complete answer to the appeal, which lay in a notice of contention.

183    The Full Court in Masi-Haini (2023) 298 FCR 277 at [47] nevertheless considered “what would follow” from the proposition (which the Full Court had earlier agreed with) that the respondent’s reasons included a faulty (or ‘illogical’) step in fact-finding. That aspect of the Full Court’s reasoning made clear that none of what followed was necessary to the conclusion reached, which is why Masi-Haini at [54] is obiter and not part of the ratio.

184    As regards that “faulty” finding, the primary judge had observed that the impugned finding was not “critical or central” to the Minister’s ultimate conclusion (a matter noted by the Full Court in Masi-Haini at [53]). In making that point, the primary judge had referred to the statement of Wigney J in SZUXN (2016) 69 AAR 210 at [55] to which I have referred above, being the statement that was approved in Muggeridge (2017) 255 FCR 81 at [35] (Charlesworth J, Flick and Perry JJ agreeing). The Full Court in Masi-Haini at [54] of its decision placed some emphasis on Wigney J’s reasoning at [55] of SZUXN, to which I return below.

185    Before I do, it is helpful to explain why the primary judge considered that the impugned finding was not “critical or central” to the Minister’s ultimate conclusion: see Masi-Haini v Minister for Home Affairs [2022] FCA 1326 (Masi-Haini First Instance). The impugned reasoning of the Minister concerned the Minister’s consideration of the applicant’s affiliation with an outlaw motorcycle gang (OMCG). The attack focused upon the Minister’s finding that the applicant knew of the OMCG’s outlaw status when he joined it. That was one of four factors considered as part of her assessment of the risk of further criminal or other serious conduct by the applicant, the other three factors being “factors contributing to past conduct”, “remorse and rehabilitation” and “recent adverse conduct”. But, in the end, none of those factors (or, indeed, the overall assessment of the risk of the applicant’s re-offending) featured in the Minister’s dispositive reasoning. Rather, as the primary judge in Masi-Haini First Instance observed at [57] (describing it as “noteworthy”), the Minister’s expression of her conclusions indicated that she gave significant weight to the gravity of crimes that the applicant had committed and the fact that he had engaged in acts of family violence: see also [109] and [110] of the Minister’s reasons, reproduced in Masi-Haini First Instance at [34].

186    Neither the impugned findings nor the Minister’s assessment of risk had any prominence in the Minister’s weighing up of the competing considerations: see Masi-Haini First Instance [2022] FCA 1326 at [57]. This was rather an example of a case where the Minister seemingly considered that the past conduct itself was of such a nature that both the applicant and the community would expect that the applicant should no longer hold a visa: see eg, as regards community expectations, FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [98] (Stewart J).

187    That was the basis for the primary judge’s conclusion that the impugned findings “cannot be considered in any way critical, or central, to the conclusion reached by the Minister that she was not satisfied that there was another reason to revoke the cancellation decision”: see Masi-Haini First Instance [2022] FCA 1326 at [58]. They were rather entirely peripheral to that ultimate conclusion. It is difficult to see how peripheral findings of that nature raised any realistic possibility that the decision that was made in fact could have been different if the error had not occurred: LPDT (2024) 280 CLR 321 at [7]. The Minister had ultimately eschewed making her decision on the basis of an assessment of risk and focused instead upon the inherent nature of the past criminal conduct. As such, the error was arguably immaterial.

188    After referring to the reasons of the primary judge and noting his reliance upon what was said in SZUXN and in Muggeridge, the Full Court in Masi-Haini (2023) 298 FCR 277 said this at [54]:

The impugned finding at [44] of the Minister’s Decision was open to the Minister, and was not on any view “critical” to her decision. It was part of a matrix of facts leading to the cautiously-expressed conclusion at [51]-[53] concerning the risk of further offending which, in turn, was weighed with other relevant factors. The error was a simple lapse in analysing the evidence which has not been shown to have caused a wrong factual finding, let alone a decision that was beyond power.

189    Understood in the context of the Minister’s reasons and the primary judge’s characterisation of those reasons (which the Full Court extracted at [22] and summarised at [53]), that passage does not go as far as the Minister contends. Paragraph [54] of Masi-Haini is better understood in the manner advanced by the appellant – namely, that the notion of a finding that is “critical” to the Minister’s decision ought to be understood as referring to a material error. Indeed, it is notable that that passage is introduced by reference to the passage from SZUXN that I have noted above at [147], where Wigney J referred to the reasoning or finding of fact being “immaterial, or not critical to, the ultimate conclusion or end result”.

190    That is also how I would read the obiter observations in XRZG at [64], which do no more than adopt what was said in Masi-Haini at [54] (which is to be understood in the manner I have just explained). To the extent that that passage may be viewed as in tension with what I have said above, I respectfully disagree for the reasons I have already given. For those same reasons, I do not share the doubt expressed in SSVJ [2026] FCAFC 45 at [50] (Perry, Kennett and Shariff JJ) – “we doubt whether ‘materiality’ (in the sense discussed in cases such as MZAPC …) is the right frame of reference in a case where irrationality is alleged”. However, it ought to be noted that those views were expressed deliberately cautiously by the Full Court and in the absence of the benefit of the debate that has taken place before us.

191    The Minister also sought to place reliance on what was said by Wigney J in a decision which preceded SZUXN, being SZWCO v Minister for Immigration and Border Protection [2016] FCA 51, where his Honour said this at [64]:

If the impugned finding or reasoning was immaterial to the ultimate decision, it is difficult to see how the decision could be said to have been affected by jurisdictional error: cf. SZRKT at [158]; SZOCT (per Nicholas J at [83]-[84]). Likewise, if the ultimate decision was supported by other findings that were open on the evidence, and other reasoning that was logical and rational, there may be no proper basis for concluding that the ultimate decision was so infected by the impugned finding or reasoning as to involve jurisdictional error.

192    The Minister argued that Wigney J was at pains to distinguish between two different matters. The first sentence concerned materiality. The second sentence was said by the Minister to concern a different matter: it was said in the Minister’s oral submissions to encapsulate “the Masi-Haini type reasoning, which is this particular reasoning is irrational, but it’s supported or supportable by other evidence not relied on by the decision-maker”. As I have explained, that is not a correct understanding of what was in fact decided in Masi-Haini.

193    Staying with SZWCO, Wigney J went on to illustrate those propositions with an example (on which the Minister also placed reliance) at [66]:

Often an adverse credibility finding is based on a number of facts and circumstances. If one of the findings, or the Tribunal’s reasoning based on that finding, could be said to be illogical or irrational, it does not necessarily follow that the Tribunal’s ultimate decision was affected by jurisdictional error. If the degree and nature of the illogicality or irrationality was not significant, and other facts and circumstances found by the Tribunal were capable of logically and rationally supporting the adverse credibility finding, or even that reasonable minds might differ based on those matters, it could not be concluded that the adverse credibility finding was illogical or irrational. Nor could it be found that the Tribunal’s decision that it was not satisfied that the visa applicant was a non-citizen to whom Australia owed protection obligations involved jurisdictional error.

(Emphasis added in bold.)

194    Those observations (particularly if understood in some sort of absolute fashion) give rise to two difficulties.

195    First, as was recently noted by Derrington J in Kostandy v Minister for Immigration and Citizenship [2026] FCA 486 at [33]-[34] (in obiter):

…the proposition that a decision-maker's ultimate conclusion will be valid if a logical or rational decision-maker could have reached the same conclusion on the same material, even by a different path of reasoning … necessarily carries the implication that a person adversely affected by an irrational and illogical administrative decision must suffer the burden of it merely because some hypothetical person could have reached the same conclusion on the material, despite not having actually done so. In effect, the hypothetical decision-maker becomes a vehicle by which a court may substitute its own reasoning for that of the decision-maker. That risks further erosion of the perilously fine boundary between judicial review and impermissible merits review.

196    I have already made a similar point above.

197    Secondly, that approach is in tension with later decisions of the Full Court of this Court.

198    In Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 a five-member Full Court of this Court (comprised of Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) said this at [213] after discussing SZMDS (2010) 240 CLR 611 and Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 198 ALR 59:

[I]t is not a precondition for relief that it be established that the decision would have been different but for the lack of reason or logic in the relevant sense. What that means in this case is that, in order to make out the alleged error of law, it is not necessary for the appellants to establish that but for the lack of reason or logic [certain evidence] would have been accepted; it is sufficient that it may have been accepted.

199    Haritos (2015) 233 FCR 315 was decided prior to the line of authorities commencing with Hossain (2018) 264 CLR 123, but it can be seen to have anticipated those later developments (albeit that the reference to “precondition for relief” suggests that materiality may have been regarded as a discretionary factor relevant to relief).

200    A similar approach was adopted in CGA15 (2019) 268 FCR 362 (Murphy, Mortimer and O’Callaghan JJ), which was decided after Hossain (2018) 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421. In that case, the Tribunal relied on certain statistical information as one of three reasons underpinning its conclusion that the chance that the appellant would face serious harm if he relocated to Islamabad or Rawalpindi was “remote” (the appellant having applied for a protection visa in connection with harm feared in Pakistan). The Tribunal also relied on two other distinct factual findings in support of that conclusion (neither of which involved error).

201    Notwithstanding this, the Full Court was satisfied that the Tribunal’s erroneous statistical analysis was material to its decision because, “if not for the erroneous reasoning the Tribunal could realistically have reached a different decision”: see CGA15 (2019) 268 FCR 362 at [60]. Explaining that conclusion, the Full Court said this at [61]:

Where a decision-maker relies on intermingled findings or matters in coming to an ultimate conclusion and there is no proper basis for one of the findings, jurisdictional error may result: ARG15 at [74]. In our view the statistical analysis cannot easily be severed from the Tribunal’s other reasons for the conclusion that the appellant faced only a remote chance of harm and it could realistically have resulted in the Tribunal reaching a different conclusion.

(Emphasis in original.)

202    The Minister sought to place emphasis on the next part of the Full Court’s reasoning in CGA15 (2019) 268 FCR 362, where it was said at [62]:

In turn the Tribunal’s conclusion that the appellant will face only a remote risk of serious harm if he relocates to Islamabad or Rawalpindi was critical to the outcome of his application for a protection visa. The Tribunal accepts that there is a real chance or real risk that he will face serious or significant harm if returned to Parachinar or his home region of Upper Kurram. It is only on the basis of its finding that it would be reasonable for him to relocate to Islamabad or Rawalpindi, where it found the risk of such harm to be remote, that the Tribunal concluded he was not owed protection obligations and therefore did not satisfy the criterion in s 36(2)(a) or (2)(aa). In our view the Tribunal’s error is material to its decision to refuse to grant the appellant a protection visa.

(Emphasis added in bold.)

203    I do not take that reasoning to impose some cumulative requirement or “further fetter on the Court’s jurisdiction” of the kind contended for by the Minister. The Full Court in CGA15 (2019) 268 FCR 362 had already stated at [60] that the question was whether, if not for the erroneous reasoning, the Tribunal could realistically have reached a different decision, after specifically referring to Hossain (2018) 264 CLR 123 and SZMTA (2019) 264 CLR 421. The reasoning in [62] was simply explaining, emphatically, why there was such a realistic possibility (connecting the impugned reasoning to the final result).

204    That is how the decision in CGA15 (2019) 268 FCR 362 was explained in Tsvetnenko (2019) 269 FCR 225 at [98], where Besanko, Banks-Smith and Colvin JJ observed:

The Court [in CGA15] found that the error in statistical analysis was material to the tribunal’s decision because it was one of three reasons underpinning its conclusion on an issue that had to be determined in the exercise of the decision-making power and it could be safely inferred that the analysis materially contributed to the tribunal’s conclusion: at [61].

205    Notably, that was one of the paragraphs from Tsvetnenko cited with apparent approval in MZAPC (2021) 273 CLR 506 at [33] (footnote 47).

206    Finally, the Minister sought to place reliance upon Charlesworth J’s reasoning in Muggeridge (2017) 255 FCR 81 (Flick and Perry JJ agreeing).

207    As I have already said, Charlesworth J’s reasoning is notable for the fact that it endorses the passage from Wigney J’s reasons in SZUXN that treats the “critical fact” analysis and materiality as synonyms for the same inquiry (see Muggeridge at [35(6)]). It does not, in those circumstances, greatly advance the Minister’s argument that her Honour later said that the relevant illogicality went to “a critical matter upon which the exercise of the Minister’s discretion turned”: see at [58]. Her Honour was there making a factual observation about the relationship between the defective reasoning and the ultimate outcome in that particular case. That, as I have said, is to be approached by reference to the threshold of materiality identified in LPDT (2024) 280 CLR 321 at [7]. Nothing said by her Honour suggests otherwise – particularly given her adoption of the passage from SZUXN. Nor did the Minister contend that we would need to revisit what was decided in Muggeridge to accept the appellant’s submissions.

5.5    Application here

208    From there, the resolution of this appeal is relatively straightforward. Indeed, before us, the Minister did not appear to seriously dispute that, if his proposed approach to ground 1 was incorrect, application of the threshold of materiality identified in LPDT (2024) 280 CLR 321 at [7] would mean that the appellant was entitled to succeed. That was the very point of putting the Minister’s somewhat ingenious argument on that issue.

209    That was a proper approach for the Minister to take.

210    As I have said, the Tribunal’s illogical or irrational reasoning at [105] formed part of its reasoning on the appellant’s risk of reoffending. As I have also noted, the Tribunal was required to have regard to that matter as an aspect of its consideration of the protection of the Australian community: see cls 8.1 and 8.1.2 of Direction 110. It did precisely that.

211    The “concern” the Tribunal expressed in that paragraph about the appellant’s potential to resume heavy drinking was (on its face) premised upon two matters – the “limited support from family or friends” and the “stress of his uncertain immigration status” (the latter involving illogical or irrational reasoning).

212    Armed with those findings or views, the Tribunal undertook at [106] the evaluation of risk required by Direction 110, where the Tribunal said this:

The Tribunal considers that the [appellant] is at moderate risk of reoffending and at higher risk of doing so if he resumes drinking heavily. The Tribunal gives this factor weight in favour of not revoking the cancellation of his Subclass 101 (Child) visa.

213    The reasoning in that paragraph involved a graduated assessment of risk; the appellant was found to present a “moderate risk of reoffending”, rising to a “higher risk … if he resumes drinking heavily”. In “giv[ing] this factor” weight against revocation, the Tribunal appears to have had regard to both possibilities as to future risk, both of which were given weight in favour of not revoking cancellation. And, of those, the more serious possibility (being the “higher risk”) was premised, in part, on the illogical or irrational reasoning at [105].

214    The Minister appeared to suggest that one might also read what was said at [106] in the context of what the Tribunal said at [103] (which I have reproduced above at [104]). In particular, the Minister highlighted what was said in the second dot point of that paragraph, where, after noting the appellant had “chosen to drink again”, the Tribunal observed that “he has chosen to do so in circumstances which have been identified as being stressors which could or would contribute to risky drinking and offending in the past, including unstable accommodation and lack of emotional support from family, friends and/or a partner”. On that view, what was said in [105] could not be regarded as the “universe” of matters giving rise to the Tribunal’s concerns about the possibility of resumed heavy drinking and the basis for the Tribunal’s conclusions at [106].

215    Let it be assumed, in the Minister’s favour, that that is correct. As the appellant observed in his oral submissions in reply, all it would mean is that the Tribunal’s conclusions on that issue rested upon three matters (one of which involved irrational or illogical reasoning) rather than two. And notably, the Tribunal did not suggest that each of those matters was in some way capable of independently supporting its views in that regard. They were, on the face of the reasoning, inextricably intertwined. CGA15 (2019) 268 FCR 362 clearly illustrates that none of that is fatal to the appellant’s argument. That is particularly so given the Tribunal’s express reference to only two of those matters in expressing its concern (“limited support from family or friends” and the “stress of his uncertain immigration status”). That suggests that those matters were, in truth, the focus of its reasoning on that issue, even if there were other matters in play (see also the words “particularly given…”).

216    Later, returning to those issues, the Tribunal said this at [162]-[164]:

Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations …

In the circumstances of this case, including consideration of the [appellant’s] efforts at rehabilitation, the Tribunal considers that the general approach should be adopted that greater weight is given to the protection of the Australian community, and to the primary considerations. The protection of the community, that the [appellant’s] conduct constituted sexual offending against women (including a child and a vulnerable, disabled person) and the expectations of the Australian community weigh heavily in favour of not revoking the cancellation. The [appellant’s] ties to Australia carry moderate weight in favour of revoking the cancellation. The best interests of minor children weighs neither for nor against revoking the cancellation in this case. Of the other considerations, the legal consequences of the decision and the extent of the impediments to the [appellant] were he to be removed to a safe third country carry moderate weight in favour of revoking the cancellation.

The Tribunal concludes that the primary considerations of the protection of the Australian community, and the expectations of the Australian community, which weigh strongly in favour of not revoking the cancellation, outweigh the considerations in favour of revoking the cancellation; namely, the strength, nature and durations of the [appellant’s] ties to Australia, the legal consequences of the decision and the extent of impediments if the [appellant] is removed from Australia.

217    Although not disaggregated, the appellant’s risk of re-offending, including that aspect which involved illogicality or irrationality, was plainly one aspect of the Tribunal’s reasoning on the protection of the Australian community. It is amongst the matters that were given “greater weight” and which “outweigh[ed] the considerations in favour of revoking the cancellation”. The Tribunal’s rolled-up approach to that matter and the other matters forming part of that primary consideration does not permit any finer analysis. And so, precisely how the irrational reasoning on the appellant’s risk of re-offending played into the final outcome is necessarily a matter of speculation, which is the very thing the High Court warned about entering into in LPDT (2024) 280 CLR 321: at [36] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) and at [49] (Beech-Jones J).

218    Indeed, this matter is, in that regard, closely analogous to the facts of LPDT (2024) 280 CLR 321.

(1)    There as here, the error “contributed to the evaluative and discretionary decision which the Tribunal made in that [it] bore on the Tribunal’s assessment of Primary Consideration 1, and in that the Tribunal’s assessment of Primary Consideration 1 weighed in favour of its exercise of discretion under s 501CA(4) not to revoke the cancellation of the appellant’s visa”: LPDT at [35].

(2)    There as here, that compels “the finding that the evaluative conclusion reached by the Tribunal in the exercise of the discretion under s 501CA(4) could have been different if there had been no error”: LPDT at [35]. And it therefore “follows that there is a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred”: LPDT at [36].

219    The primary judge erred in concluding otherwise (at PJ [109]-[111]). As I have noted above, her Honour (candidly) expressed reservations about that conclusion (at PJ [99]), but, having regard to the body of authority I have canvassed above, quite properly left those issues to be resolved at the intermediate appellate level. As I have explained, that body of authority does not in fact support the Minister’s argument.

220    For those reasons, I would allow ground 1 of the appeal.

6.    GROUND 2

221    By ground 2, the appellant argued that the Tribunal relied on an erroneous understanding of the Act (or upon unfounded assumptions about that enactment), being that any third country would have to be assessed as safe before the appellant could be removed there. The essence of the ground was put as being that the Tribunal acted on an assumption that there was a “precondition” before the relevant statutory power could be exercised. The (erroneously – according to the appellant) assumed precondition was that before the appellant could be removed to a third country, pursuant to a third country reception arrangement, that country would first need to be assessed as “safe” for the appellant, in the sense that he would not face persecution there, relevantly, on the basis of his sexuality.

222    By reason of my conclusions as regards the notice of contention and ground 1, it is not strictly necessary for me to determine ground 2. But as the point was fully argued, I will outline why (had it been necessary to do so) I would have been minded to reject that argument on the facts.

223    Understanding the arguments articulated under this ground requires some reference to the statutory background, including its history, and also to the manner in which the appellant’s case developed before the Tribunal.

6.1    Relevant aspects of the procedural history before the Tribunal

224    Prior to the hearing before the Tribunal, in an “updated statement” dated 4 December 2024, the appellant’s father said that the appellant had told him this:

… his status in Australia is not secure because if Australia finds a safe country (other than Zimbabwe), he will be taken there.

225    That appears to be the first reference to a “safe” third country in the materials before the Tribunal. That issue is also reflected in the Tribunal’s discussion of the appellant’s case at paragraph [33] of its reasons:

At hearing on 10 December 2024, the [appellant] resiled from some of the above points, and made some additional ones. In summary ... [t]he [appellant] also stated that he had close family ties to Australia (principally his father) and that he feared being removed to Zimbabwe or a safe third country. In relation to Zimbabwe, he stated that he feared being persecuted because he was bisexual (a fear considered well founded by the AAT, differently constituted, in May 2024), and was concerned that he would struggle economically if returned there.

226    The issue of removal to a “third country” was later the subject of a post-hearing invitation to comment by the Tribunal in light of certain legislative amendments. The legislative amendments in question were two separate acts, both assented to on 4 December 2024: the Migration Amendment Act 2024 (Cth) (Act No. 105 of 2024); and the Migration Amendment (Removal and Other Measures) Act 2024 (Cth) (Act No. 107 of 2024).

(1)    Act No. 105 of 2024 relevantly introduced ss 76AAA and 198AHB and was principally concerned with facilitating “third country reception arrangements”, and then providing for the ceasing of bridging visas where the holder has been granted permission to enter and remain in the third country by that country.

(2)    Act No. 107 of 2024 relevantly introduced Subdivision D of Division 8 of Part 2 and was principally concerned with providing mechanisms to compel non-citizens to cooperate with their lawful removal from Australia. Section 199C in particular provided a discretionary power for the Minister to give a “removal pathway direction”, requiring the non-citizen to do certain things (such as applying for a travel document) to achieve that removal (including removal to a country the subject of a third country reception arrangement). However, s 197E(5) provided that the removal duty in s 198 was temporarily suspended where the Minister decided to consider whether to exercise a Ministerial intervention power in relation to an unlawful non-citizen.

227    The appellant had been invited to comment on those developments after the hearing as the Tribunal noted at paragraph [20] of its reasons:

On 12 December 2024, the Tribunal wrote to the [appellant] by email and Express Post to confirm that Bridging Visa R (BVR) amendments, discussed at the hearing on 10 December 2024, had now come into operation and to request that he provide any additional written submissions he wished to make about these amendments by close of business on 20 December 2024.

228    In summarising the effect of Act No. 107 of 2024, the Tribunal said this in its letter inviting further submissions dated 12 December 2024:

This amending Act, which commenced on 4 December 2024, with Schedules 1 (removal and removal concerns) and 3 (Ministerial intervention) having commenced a day later on 5 December 2024, amends the Migration Act 1958 (Cth) to strengthen the legislative framework in the Act relating to the removal of certain non-citizens who are on a removal pathway. This includes non-citizens who hold subclass 070 BVRs.

In particular, the amendments include:

•    introducing a power to issue a ‘removal pathway direction’ to a non-citizen to take certain action that the Minister is satisfied is reasonably necessary to determine whether there is a real prospect of their removal becoming practicable in the reasonably foreseeable future. Non-compliance would carry mandatory minimum criminal penalties;

•    importantly, a non-citizen on a removal pathway cannot be directed to interact with, or be removed to, a country in respect of which she or she [sic] has been found to engage Australia’s protection obligations; however, they may otherwise be given a direction to do certain things necessary to facilitate their removal to a safe third country …

(Emphasis added in bold.)

229    As the Minister observed, the text of the second dot point was evidently drawn verbatim from the Explanatory Memorandum for the Migration Amendment (Removal and Other Measures) Bill 2024 (Cth) (see page 2). It was common ground below that this Explanatory Memorandum was before the Tribunal: see PJ [121]. The provisions to which that referred were ss 199D (added by schedule 1, clause 3, Act No. 107 of 2024) and 197C. More specifically:

(1)    Section 199D(1)(a) provided:

(1)    The Minister must not give a removal pathway direction to a removal pathway non-citizen to do, or not do, a thing in relation to a particular country if:

a.    in the case of an unlawful non-citizen—the non-citizen cannot be removed to that country because of subsection 197C(3).

(2)    Section 197C(3), in turn, made clear (notwithstanding the terms of ss 197C(1) and 197C(2)) that s 198 did not require or authorise an officer to remove an unlawful non-citizen to a country if, amongst other things, a “protection finding” (as defined in broad terms in ss 197C(4)-(7)) had been made in respect of that country.

230    The term “safe third country” was thus used in the Explanatory Memorandum to refer to countries in respect of which no such finding had been made. It was the absence of a relevant protection finding to which that label was attached.

231    In response to the Tribunal’s invitation, the appellant provided the following response by email on 24 December 2024:

1.    The Minister cannot direct me to interact with Zimbabwe, nor can he/she remove me to Zimbabwe.

2.    However, these amendments would allow the Minister to quash my protection finding and I will [sic] forced to facilitate my removal (failure to do so would result in criminal charges, and possibly jail time).

3.    I will be legally exposed to criminal charges and sanctions if a non-revocation decision is made.

4.    The 'third country' would know my criminal record, which why I expect that the third country would refoul me to Zimbabwe, where I will obviously face persecution.

6.2    Relevant features of the statutory context relied upon by the appellant

232    Before us, the appellant relied upon certain features of those and other provisions of the Act.

233    First, s 198(2B) of the Act provides that an officer must remove an unlawful non-citizen as soon as reasonably practicable if (amongst other things) a delegate of the Minister has cancelled the non-citizen’s visa under s 501(3A) of the Act.

234    Second, the appellant could not (at the time of the Tribunal hearing) be removed to Zimbabwe pursuant to s 198(2B) because of the protection finding made for him in relation to Zimbabwe under s 197C of the Act.

235    Third, and qualifying the second proposition, whilst s 197C(3) of the Act provided that s 198 does not require or authorise removal of the appellant to Zimbabwe, it did not prevent removal to another country.

236    Fourth, the appellant was, at the time of the Tribunal hearing, not subject to removal to other countries under s 198(2B) of the Act because he was and is the holder of a bridging visa. However, the appellant’s bridging visa may have later ceased if the conditions in the newly added s 76AAA of the Act were met. Section 76AAA relevantly provides:

(1)    This section applies in relation to a non-citizen if:

(a)    the non-citizen holds a Subclass 070 (Bridging (Removal Pending)) visa; and

(b)    the non-citizen has permission (however described), granted by a foreign country, to enter and remain in that country; and

(c)    the foreign country is a party to a third country reception arrangement (within the meaning of section 198AHB) that is in force; and

(d)    none of the following apply:

(i)    the non-citizen has made a valid application for a protection visa that has not been finally determined;

(ii)    the non-citizen could not be removed to the foreign country because of subsection 197C(3) if the non-citizen were an unlawful non-citizen;

(iii)    the non-citizen is a child under 18.

(2)    The Minister must give the non-citizen notice that this section applies in relation to the non-citizen.

(3)    …

(4)    Despite any other provision of this Act or the regulations, the visa ceases to be in effect immediately after:

(a)    if the notice is given by a method specified in section 494B—the non- citizen is taken to have received the notice; or

(b)    otherwise—the non-citizen receives the notice.

237    Fifth, s 198AHB(1) of the Act defines a “third country reception arrangement” as an “arrangement … with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country”. “Arrangement” is defined, in turn, in s 198AHB(5) to include “an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding”.

238    Sixth, there is no requirement in s 198AHB that a country be assessed as “safe” before the Commonwealth enters into a third country reception arrangement with that country. Nor does s 198(2B) limit removal to “safe” countries.

239    In that factual and legal context, part of the Tribunal’s consideration of the consequences of its decision involved consideration of the prospect that the appellant’s BVR might cease and that he might be removed to a third country. That consideration is to be found at paragraphs [134]-[139] of the Tribunal’s reasons.

240    The appellant pointed to paragraph [136] of the Tribunal’s reasons, where the Tribunal considered the appellant’s concern that he may be removed to a country other than Zimbabwe. Twice in that paragraph the Tribunal uses the phrase “safe third country”. Then, at [138], the Tribunal uses the phrase “safe third country” four more times, before its conclusion in the final sentence of [138]:

It is also not known whether the [appellant], who is bisexual, might be removed to a country where being a member of the LGBTI community could expose him to discrimination or harm, although the Tribunal considers this unlikely as any third country would have to be assessed as ‘safe’ in order for the [appellant] to be removed.

(Emphasis added in bold.)

241    The appellant placed particular reliance on those emphasised words.

242    That, the appellant said, involved an error as to the statutory scheme. For there is (and this much was uncontroversial between the appellant and the Minister) no requirement in the statutory regime that “any third country would have to be assessed as ‘safe’ in order for the [appellant] to be removed” (to use the language of the Tribunal).

243    The primary judge did not accept that argument. Her Honour said in that regard at PJ [133]:

The Tribunal was clearly, on my reading of the reasons, not labouring under a misapprehension that the legislative regime as such precluded removal to a country that had not been assessed as “safe”. Rather, the Tribunal, in light of the existence of that theoretical risk, was assessing the likelihood of the [appellant] being removed to a third country that was not safe. That was assessed to be “unlikely” to occur on the basis that any third country “would have to be assessed as ‘safe’ in order for the [appellant] to be removed” (T [137]). The Tribunal’s reference to the country being one that “would have to be assessed as ‘safe’” (emphasis added) is somewhat infelicitous, but does not reveal any misunderstanding of the legislative regime.

6.3    Disposition

244    Had it been necessary for me to decide this issue, I would have been minded to hold that the appellant’s appeal in respect of that aspect of her Honour’s reasons failed on the facts.

245    The starting point for the Tribunal (at [131]-[133]) involved summarising the well-known effect of ss 189, 198 and 197C (including in light of what had been decided in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137).

246    The Tribunal then moved on to s 76AAA (added by sch 1, cl 1, Act No. 105 of 2024). That provision, as the Tribunal there noted, passed on 29 November 2024, and came into operation on 5 December 2024. The Tribunal at [134] went on to observe:

In summary, s 76AAA of the new legislation provides for a person’s BVR to cease if:

•    that person has permission to enter and reside in a foreign country;

•    that foreign country is a party to third country reception arrangements with Australia; and

•    the person:

•    does not have a protection visa application on foot that has not been finally determined; or

•    the person cannot be removed to that country because of a protection finding in relation to that country; or

•    the person is under 18.

247    The last two dot points appear to involve an error, in that the Tribunal failed to observe that the effect of s 76AAA(1)(d) was that the provision would not apply if either of those two conditions applied. However, nothing was said to flow from that by the appellant.

248    Having summarised (albeit somewhat inaccurately) what was provided for in s 76AAA, the Tribunal then at [135] addressed itself to what that meant in concrete terms:

This means that where a protection finding has been made in respect of a person for a particular country, and the person cannot be removed to that country because of that finding under s 197C of the Act, the person can be removed to a different country that is a party to a third country reception arrangement as defined in s 198AHB of the Act, and the person has permission to enter and reside in that country. Other provisions in the Migration Amendment Act require the person to cooperate with steps for their removal to a foreign country and the Migration Amendment (Removal and Other Measures) Act 2024 (Cth) (which came into operation on 4 December 2024) creates a criminal offence if the person does not cooperate with these steps.

249    None of that was said to involve error or any misunderstanding of the Act. And notably nowhere did the Tribunal suggest that removal (or entry into a third country reception arrangement) was subject to some condition involving an assessment of the appellant’s safety.

250    The Tribunal at [136] then introduces the term “safe third country” as a means of describing the appellant’s submissions before the Tribunal (consistent with what I have said about this language having originated in the appellant’s case):

At hearing and in his post hearing submissions, [the appellant] expressed concern that he would be removed to a ‘safe third country’ such as Papua New Guinea, where he knew no one and would have no support. He also feared that he could be removed from any safe third country to Zimbabwe, despite the fact that he has a protection finding in relation to Zimbabwe made in Australia by the AAT (as it then was).

251    Notably, the Tribunal used inverted commas around the term safe third country, signifying that it was adopting a particular term used by the appellant rather than a term from the statute. It employed a similar grammatical device in respect of the word “safe” in the crucial final sentence of [138].

252    The Tribunal then observed at [137] that the relevant amending acts had commenced, but that what (if any) arrangements had been made under those enactments was not the subject of any evidence before it:

The Tribunal must make its assessment of the legal effect of not revoking the cancellation of the [appellant’s child] visa at the time of this decision. At this time, the amending Acts have now commenced; however, there is no evidence before the Tribunal as to what (if any) arrangements have been made with third party countries, it is unknown what countries might be party to any such arrangements, and it is unknown if the Minister would seek permission for the [appellant] to enter and reside in any other country. No submissions about these matters were made by the Minister.

(Emphasis added in bold.)

253    Pausing there, it is significant that the Tribunal seemingly saw the question of whether the Minister would “seek permission for the [appellant] to enter and reside in any other country” (see again the terms of s 76AAA(1)(b)) as the principal issue which would govern the appellant’s removal to such a country. Tellingly, it does not refer to any required state of satisfaction concerning the appellant’s safety in such a country. Again, none of that suggests any misunderstanding of the statutory scheme; to the contrary, it suggests that the Tribunal was very well aware of the relevant requirements, which it had summarised shortly before.

254    In the very next sentence of its reasons (ie the first sentence of [138]), the Tribunal makes clear that the lack of evidence it identified in the preceding paragraph was not problematic. It was not problematic, because it could resolve the issue by reference to what it there expressly refers to, being “the intention of the Australian Government” (emphasis added), a matter it plainly considered sufficiently “clear”.

255    As the primary judge observed at PJ [132], that does not appear to involve any particular understanding of the terms of the statute. It rather involves a view about stated executive policy. That is also suggested by the final sentence of paragraph [138] of the Tribunal’s reasons: “It is also not known whether the [appellant], who is bisexual, might be removed to a country where being a member of the LGBTI community could expose him to discrimination or harm …” (emphasis added). As the primary judge noted at PJ [132], that provides some support for the proposition that the Tribunal was addressing itself to what was likely to happen as a matter of practical reality, rather than expressing a view as to the terms of the statute and what it required.

256    Nevertheless, as the primary judge accepted at [133], the Tribunal’s statement at the end of [138] – that “the Tribunal considers this to be unlikely as any third country would have to be assessed as ‘safe’ in order for the [appellant] to be removed” (emphasis added) – is “infelicitous” and does use language suggestive of some sort of obligation.

257    The Minister sought to meet that difficulty by observing that, read fairly and in context, it went no further than the manner in which one should understand what is signified, as a practical matter, by Australia’s entry into the various international agreements imposing non-refoulement obligations on Australia. The Minister said that was to be understood in the way discussed in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565 at [3] where Allsop CJ said this:

The third consideration was the nature of the undertaking by the Executive government to adhere (in good faith) to the terms of a given international instrument as a solemn assurance made to the international community and to the Australian people: BFM16 [2021] FCA 312 at [150]-[154], [195], citing Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 291 where Mason CJ and Deane J said the following:

… ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights ... Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.

Justice Toohey further remarked at 301:

For, by ratifying the Convention Australia has given a solemn undertaking to the world at large …

(See also [168] (Besanko J).)

258    It was said by the Minister that this was all the Tribunal had in mind in the final sentence of its reasons at [138]. It reflected the Tribunal’s understanding that, in the case where a person had raised credible fears about removal to a country for which they had not yet been assessed in terms of protection visa matters, there would (at least as a matter of practical reality) necessarily be an assessment of that person facilitated through the exercise of the so-called “dispensing powers” under the Act: see eg ss 48B, 195A.

259    The Minister accepted that this does not involve any requirement under the Act, noting that, in the case of each of the dispensing powers, the Act explicitly provides that the Minister is not obliged to consider their exercise: see eg ss 48B(6), 195A(4).

260    Nevertheless, by those mechanisms, the Act would accommodate that which international law would regard as obligatory. That, it was said, was how one ought to read the final sentence of paragraph [138] of the Tribunal’s reasons.

261    I accept those submissions.

262    It matters not whether the Tribunal had before it specific evidence of Australia’s intention to abide by such obligations (although the Minister initially sought to invite such an inference on the basis that: (a) the Tribunal plainly had regard to some aspects of the extrinsic materials to the Migration Amendment (Removal and Other Measures) Bill 2024 (Cth); and (b) that other aspects of the extrinsic materials made reference to “other safeguards” being “used and/or implemented as a matter of practice, policy and procedure to ensure that Australia is prepared and able to comply with its non-refoulement obligations”).

263    The point is more fundamental. The point is that the Tribunal was entitled to proceed on the basis that Australia’s entry into those obligations was not a “platitudinous or ineffectual act”: see Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291 (Mason CJ and Deane J). And so, in dealing with the practical application of the Act as amended, there was no difficulty in proceeding on the basis that those obligations would be adhered to by the executive, including by assessing whether the appellant was relevantly “safe” (that is, not exposed to refoulement) before removal.

264    It is inherently unlikely that the Tribunal proceeded on some misunderstanding of the Act at [138] given that (as I have noted above) its summary of the statutory provisions at paragraphs [131]-[132] and [134]-[135] was addressed to those very matters and was not said to be relevantly erroneous. I do not accept that the Tribunal put all of that out of its mind a few paragraphs later at [138].

265    All of that points to the conclusion that the Tribunal’s language of ‘obligation’ had some other target in mind – the most obvious being Australia’s non-refoulement “obligations” (to which the Tribunal specifically referred at paragraph [129] as an aspect of the “legal consequences of a decision on a non-citizen” which it was considering in this part of its reasons).

266    Accordingly, had it been necessary to do so, I would have rejected ground 2.

7.    CONCLUSION

267    I would dismiss the Minister’s notice of contention and reject ground 2 of the appellant’s notice of appeal. However, I would uphold ground 1 of the appellant’s notice of appeal and allow the appeal with costs.

Associate:

Dated:    8 September 2026