Federal Court of Australia

DBKX v Minister for Immigration and Multicultural Affairs [2025] FCA 700

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

HESPE J:

1    The applicant applies for judicial review of a decision of the Administrative Appeals Tribunal made on 4 April 2023: Re DBKX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 673 (TR). That review concerned a decision made by a delegate of the Minister on 9 June 2022 to refuse the applicant’s application for a protection visa on the ground that he did not meet the criteria in s 36(1C)(b) of the Migration Act 1958 (Cth). The Tribunal affirmed that decision.

2    The application is based on three grounds of jurisdictional error:

(1)    First, the Tribunal is said to have erred in failing to take into account relevant considerations.

(2)    Second, the Tribunal is said to have erred “in applying the law” by not exercising its powers under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) or the Migration Act to seek and obtain further information and in interpreting and applying s 36(1C) of the Migration Act.

(3)    Third, the Tribunal’s decision was legally unreasonable.

3    For the reasons below, the application is dismissed.

Factual background

4    The applicant is a citizen of Sudan. He arrived in Australia in May 2006 with his then wife and their daughter on a refugee (Class XB) (Subclass 200) visa (TR [1]). The applicant’s father was assassinated when the applicant was about 15 or 16 years old. After finishing high school, the applicant served in the Sudanese military before escaping the military camp and travelling to Egypt (TR [34]).

5    The applicant and his former wife separated in 2008 and divorced in 2010. The applicant has not seen his daughter since 2011 (TR [36]).

6    The applicant was diagnosed with schizophrenia in Australia sometime between 2006 and 2007. He has been admitted to hospital on multiple occasions since 2007 to receive treatment for his mental health issues. His mental health improves when he takes his prescribed medication (TR [38]–[39]).

7    The applicant sustained a brain injury in a car accident in Egypt in 2004 and has continued to suffer impaired thinking, memory loss and headaches (TR [40]).

8    The applicant had been diagnosed with hepatitis A, B and C, HIV, chronic back pain and asthma (TR [41]). He has been diagnosed with drug abuse disorder, having abused heroin, methamphetamine and marijuana (TR [42]).

9    The applicant has a lengthy criminal history. Between June 2010 and August 2018, the applicant was convicted of more than 150 offences and was sentenced to periods of imprisonment on 30 occasions. His offences included (TR [50]):

    violent and violence-related offences (for example, robbery, affray, making a threat to kill, making a threat to inflict serious injury, intentionally causing injury, recklessly causing injury, unlawful assault and possessing a controlled weapon without excuse);

    family violence-related offences (for example, persistently contravening family violence intervention orders and stalking another person);

    non-compliance with judicial orders, bail conditions and police directions (for example, failure to comply with community-based order conditions, contravening a conduct condition of bail, resisting police and acting in disruptive manner in police gaol);

    property offences (for example, vandalism, theft, burglary, fraud, dealing property suspected proceed of crime, possessing suspected stolen goods and theft of a motor vehicle);

    drug and alcohol offences (for example, possession and use of heroin, possession of cannabis and amphetamine and being drunk in a public place); and

    driving offences (for example, unlicensed driving).

10    On 21 November 2018, the applicant’s refugee visa was cancelled under s 501 of the Migration Act. A delegate of the Minister refused to revoke the cancellation of the refugee visa and the Tribunal (differently constituted) affirmed this decision on 25 February 2020 (TR [2]).

11    On 27 October 2020, the applicant applied for a protection visa (TR [3]).

12    On 9 June 2022, a delegate of the Minister refused the applicant’s protection visa application. The delegate accepted that the applicant is a person in respect of whom Australia has protection obligations but found that the applicant did not satisfy the criteria for a protection visa specified in s 36(1C)(b) of the Migration Act (TR [4]).

13    On 17 June 2022, the applicant applied to the Tribunal for review of the delegate’s decision to refuse the grant of the protection visa (TR [5]). The applicant was not represented before the Tribunal (TR [6]).

14    On 4 April 2023, the Tribunal made a decision to affirm the delegate’s decision.

15    Following the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005, the applicant was released from immigration detention and has been living on the streets and in custody in Victorian law enforcement facilities.

Legislative context

16    Section 36(1C) of the Migration Act relevantly provides:

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

(a)     is a danger to Australia’s security; or

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

17    Section 36(2C) relevantly provides:

Ineligibility for grant of a protection visa

(2C)    A non-citizen is taken not to satisfy the [complementary protection] criterion mentioned in paragraph (2)(aa) if:

….

(b)    the Minister considers, on reasonable grounds, that:

(i)    the non-citizen is a danger to Australia’s security; or

(ii)    the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

18    Section 5M of the Migration Act defines “a particularly serious crime” to include “a reference to a crime that consists of the commission” of a “serious Australian offence” or a “serious foreign offence”.

19    A “serious Australian offence” is defined in s 5(1) of the Migration Act as “an offence against a law in force in Australia”, where:

(a)     the offence:

(i)     involves violence against a person; or

(ii)     is a serious drug offence; or

(iii)     involves serious damage to property; or

(iv)     is an offence against section 197A or 197B (offences relating to immigration detention); and

(b)     the offence is punishable by:

(i)     imprisonment for life; or

(ii)     imprisonment for a fixed term of not less than 3 years; or

(iii)     imprisonment for a maximum term of not less than 3 years.

Tribunal’s decision

20    The issues for the Tribunal were whether it considered, on reasonable grounds, that pursuant to s 36(1C)(b) of the Migration Act, the applicant had been convicted by final judgment of a particularly serious crime; and whether the applicant was a danger to the Australian community (TR [15]).

21    The Tribunal found (at TR [17]–[21]) that the applicant had been convicted by final judgment of a particularly serious crime, having been convicted on 31 May 2011 of the offence “recklessly cause injury” (two charges) in accordance with the Crimes Act 1958 (Vic). He was again convicted of this same offence on 22 August 2014 (TR [18]). Section 18 of the Crimes Act provides that the offence of recklessly causing injury incurs a maximum penalty of “level 6 imprisonment (5 years maximum)” (TR [19]). The Tribunal was satisfied that the offence of recklessly causing injury is a “serious Australian offence” as defined in s 5(1) of the Migration Act, because the offence involves violence against a person and is punishable by imprisonment for a maximum term of not less than three years (TR [20]).

22    In considering whether the applicant was a danger to the Australian community, the Tribunal referenced DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636, KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; 279 FCR 1 and SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055 and referred to the factors identified in WKCG and Minister for Immigration and Citizenship [2009] AATA 512; 110 ALD 434 at [26].

23    The Tribunal made the following findings:

(1)    The applicant’s sentences of imprisonment had not deterred him from further offending (TR [52]).

(2)    The circumstances of the applicant’s then most recent conviction (for persistently contravening a family violence order) showed an increase in the seriousness of his offending behaviour (TR [52]–[53]).

(3)    The factors that contributed to the applicant’s criminal offending included his non-compliance with treatment for schizophrenia, his use of illicit drugs and alcohol, homelessness and food insecurity (TR [59]). The applicant’s conduct could be explained by his circumstances of long-standing issues with his mental health and compliance with treatment, diagnosed drug use disorder and brain injury. These factors were further amplified by the applicant’s background growing up in Sudan, his father’s assassination, his own military experience, and his nil contact with any members of his family and his former wife (TR [66]).

(4)    The applicant had been provided “multiple opportunities to address his drug and alcohol and mental health issues, as well as multiple judicial warnings of the consequences if he failed to do so”, but when not in a structured environment such as prison or hospital he ceased to take medication for his diagnosed schizophrenia, which led to a cycle of illicit drug use and criminal offending (TR [64]). Whilst in prison and immigration detention, the applicant had not used drugs or alcohol and had taken his medication (TR [59]).

(5)    The applicant demonstrated almost no insight into his offending behaviour and limited capacity to accept responsibility for his offending behaviour (TR [57]–[58] and [65]).

(6)    Incident detail reports from the immigration detention centre show the applicant was involved in an incident in which he inflicted “substantial damage to Commonwealth property” and injured himself (TR [61]).

(7)    The applicant gave inconsistent responses to questions about whether he would continue to seek and receive treatment for schizophrenia if released into the Australian community (TR [46]).

(8)    The applicant was unsure about where he would live in the community if released from immigration detention (TR [47]).

(9)    The Tribunal accepted that the contradictions in the applicant’s evidence could be explained by his long-standing mental health issue and diagnosed schizophrenia and drug abuse disorder, and the brain injury he sustained in 2004 (TR [48]).

24    The Tribunal recognised that the assessment of a person’s risk involves a process of evaluating and weighing factors that may indicate the likelihood a person will engage in future criminal conduct as well as a consideration of factors that would be expected to protect a person from future criminal conduct (TR [67]). The Tribunal considered that assessing the applicant’s recidivism and likelihood of relapsing into crime was difficult in circumstances where the applicant had shown minimal understanding of his past conduct. The Tribunal considered that it was more likely than not that the applicant would stop taking medication for his diagnosed schizophrenia and resume taking drugs and alcohol outside the structured environment of a hospital, prison or detention centre (TR [68]). The applicant lacked the support of family and friends to provide him with food and housing and had not complied with 14 community treatment orders (TR [69]). The Tribunal was not satisfied of the extent to which the applicant’s daughter would be a protective factor in preventing the applicant from offending in the future (TR [71]).

25    Based on its evaluation, the Tribunal concluded (at TR [70]) that it was:

…extremely likely that the Applicant will relapse into criminal behaviour if he is released into the Australian community. Based on the totality of the Applicant’s criminal history, I am satisfied this would involve serious and significant harm to property and people in the Australian community, including his former wife.

26    The Tribunal was satisfied that the applicant presents a serious and significant risk of harming individuals in the Australian community (TR [72]).

Grounds of review

Ground 1: Failure to consider relevant considerations

27    The applicant contended that the Tribunal failed to consider:

(a)    whether to obtain additional information about possibilities of accommodation for the applicant if granted a protection visa, by exercising its power under any of s 33(2A)(a), 40A or 43 of the AAT Act;

(b)    what kind of community accommodation may be available to the applicant if granted a protection visa; and

(c)    whether the applicant might become an inpatient for treatment of his mental health, whether voluntary or as an involuntary patient under the Mental Health and Wellbeing Act 2022 (Vic),

in circumstances where:

(1)    The applicant was unrepresented before the Tribunal.

(2)    The Tribunal had observed that the applicant had some difficulties in presenting his case (TR [43] and [48]).

(3)    The Tribunal had found that “the factors that have contributed to the Applicant’s offending have included his non-compliance with treatment for schizophrenia, his use of illicit drugs and alcohol, homelessness and food insecurity” (TR [59]).

28    Counsel for the applicant provided examples of material that may have been found by the Tribunal had it made inquiries. The material adduced was a brochure entitled “Salvation Army Housing 2022–2023 Annual Report”. Salvation Army Housing is a community housing organisation providing homes for individuals and families at risk of homelessness. The report records that the Salvation Army was successful in tendering for Housing Support Services for Court Services Victoria.

29    The applicant also contended that the Tribunal’s failure to consider whether the fact that “in the period since August 2018, when the Applicant has been in prison and immigration detention, the Applicant has not used drugs or alcohol, and has taken his medication for schizophrenia” may itself have been a basis to consider that his likelihood of reverting to drugs or alcohol may be diminished, and thereby his risk of acting in a way dangerous to the Australian community may also be diminished.

30    The applicant further contended that the Tribunal did not consider whether the result of a decision to refuse to grant the applicant a visa because of a finding that he did not meet the requirements of s 36(1C) of the Migration Act may result in him being in indefinite detention.

31    The basis upon which the applicant contends that each of these matters amounted to “relevant considerations” was that each was said to be a material question of fact raised squarely by the material before the Tribunal.

Consideration

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

33    The contentions set out at [27(a)]–[27(b)] above are not supported. The evidence accepted by the Tribunal in this case was that the applicant’s offending was contributed to by factors extending beyond homelessness and food insecurity (TR [59]). The evidence accepted by the Tribunal was that when not in a structured environment such as prison or hospital, the applicant ceased to take medication for his diagnosed schizophrenia, which led to a cycle of illicit drug use and criminal offending (TR [64]). The applicant had not complied with 14 community treatment orders (TR [69]). The availability of possible “community accommodation” at large was not a critical fact or a claim clearly emerging from the material. The Tribunal was not required to engage in creative activity to construct a case for the applicant.

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

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

36    It cannot be said that it was part of the Tribunal’s task to consider whether the result of a decision to refuse to grant the applicant a protection visa may result in him being in indefinite detention. As the High Court’s decision in NZYQ revealed, the Government has no constitutional power to detain individuals in immigration detention indefinitely.

Ground 2: Failure to perform statutory task or act on a correct understanding or application of law in relation to s 36(1C)

37    The applicant contended that the Tribunal erred in applying the law in two ways:

(a)    by not exercising its powers under s 40A or s 43 of the AAT Act and s 56 of the Migration Act to seek and obtain further information about the possibilities of accommodation for the applicant if he were granted a protection visa; and

(b)    in interpreting or applying s 36(1C) of the Migration Act, because a finding that the applicant did not meet the criterion for a protection visa would result either in indefinite detention (which would be unlawful), or in his release. If released without a protection visa, there was no difference in danger posed by him to the Australian community if he were granted a protection visa.

38    The first contention is not made out. As explained at [32] above, the Tribunal had no legal obligation to obtain further information about possibilities of accommodation for the applicant.

39    The second contention concerns the construction of s 36(1C). The applicant contends that the statutory exercise required by s 36(1C) in assessing whether the applicant is a danger to the community involves the consideration of the relative risk to members of the Australian community if the applicant were granted a protection visa or not granted the visa.

40    The contention posits two possible consequences to the applicant of the refusal of a protection visa: the first is indefinite detention and the second is release into the community as a result of the High Court’s decision in NZYQ. The first posited consequence may be ignored as following NZYQ indefinite detention is not a possibility.

41    Insofar as the second posited consequence is concerned, the reasoning underpinning the contention is along the following lines. Following NZYQ, indefinite detention was found to be unlawful. Having accepted that the applicant was owed protection obligations, the applicant could not be removed to Sudan (s 197C(5) of the Migration Act). Even if denied a protection visa, the applicant would be released into the community. The Tribunal did not take into account the fact that the grant of a protection visa would not alter the danger to the community but assumed that absent the grant of the protection visa, the applicant would lawfully remain in immigration detention indefinitely. In so doing, it was said that the Tribunal proceeded on a misunderstanding of the law and failed to carry out its statutory task. It was submitted that:

…to determine whether the applicant met section 36(1C) of the [Migration] Act required the assessment of whether – by meeting the criterion for a visa and therefore possibly being granted a visa – the applicant would be a danger to the Australian community, precisely as the holder of a visa rather than as an unlawful non-citizen.

42    The Court was referred to the Full Court’s decision in AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586 (Murphy, Stewart and McEvoy JJ) which recognised that powers must be exercised by reference to correct legal principle. By proceeding on an understanding of the law that was not consistent with NZYQ, the Minister in AJN23 had erred in law (at [34]). The High Court’s decision in NZYQ did not change the law and the principles elaborated in NZYQ must be understood to have applied at the time the Minister had made his decision (at [32]).

43    The Minister accepted that the Tribunal’s satisfaction that the applicant is a danger to the community must be reached on a correct understanding of the law: AJN23 at [26]. The Minister contended, however, that the nature of the exercise in s 36(1C) did not call for an evaluation of the kind advocated for by the applicant. Unlike the exercise required by s 501A(2) (the subject of AJN23), the state of satisfaction to be reached under s 36(1C) in relation to the danger to the Australian community did not require the Tribunal to take into account the comparative legal consequences of the decision to grant a protection visa with the legal consequences of refusing the grant of that visa. Any misunderstanding of the law relating to indefinite detention was not a misunderstanding of the law that was applicable to the state of satisfaction to be formed under s 36(1C).

44    The Minister further submitted that as a matter of fact, the Tribunal’s reasons did not proceed on an assumed understanding that the applicant would have otherwise been subject to indefinite detention.

Consideration

45    It is a necessary criterion for the grant of a protection visa that the Minister must consider, on reasonable grounds, that the non-citizen is not a person who, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community: SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104; 299 FCR 148 at [2] (Jackson J); s 36(1C)(b) of the Migration Act.

46    The phrase “danger to the Australian community” has been considered by the Full Court in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84; 297 FCR 550 (Rares, Jackson and Snaden JJ) and SLGS. For present purposes, it is sufficient to observe that the assessment required is of the future conduct of the person. It is an assessment to be made of the particular facts and circumstances. The concept of danger involves an evaluation of two spectra: first, the probability or likelihood of the occurrence of an event or circumstance and, secondly, the consequence of its occurrence: DMQ20 at [107] (Thomas and Snaden JJ); SLGS at [62]. They are related inquiries: DMQ20 at [113]. The higher the probability of an event, the less severe its consequences might need to be for the prospect of its occurrence to qualify as a “danger”, and vice versa: SLGS at [65]. Danger denotes a prospect of harm: DMQ20 at [111]. The harm must be of a non-trivial kind: SLGS at [69]. The phrase “the Australian community” is “apt to encompass any and all members of the population of Australia”: DMQ20 at [127].

47    In the statutory context, the criterion in s 36(1C) provides for an exception to the expectation that Australia will afford protection to refugees and others in need of it: DMQ20. As Abraham J observed in SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055 at first instance at [38]–[39], the phrase “danger to the Australian community” reflects Australia’s understanding of its international obligations under art 33(2) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), which provides for an exception to the principle of non-refoulement in art 33(1) of that Convention in the case of a refugee who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

48    As a criterion for the grant of a protection visa, the phrase “danger to the Australian community” does not call for the kind of comparative evaluative exercise advocated for by the applicant. The evaluation is not a comparative exercise to assess whether the grant of a protection visa would result in an increase in the danger to the community posed by the applicant over the danger to the community posed by the applicant if a protection visa were not granted. It having been accepted that the applicant had been convicted of a particularly serious crime, the question was whether the Minister considered on reasonable grounds that the applicant was a danger to the Australian community. As explained at [46] above, the evaluation concerns an assessment of the probability of an event occurring in the future and the consequences of that event, should the applicant remain in the Australian community.

49    The exercise required by s 36(1C) of the Migration Act is different from that required by s 501A, which concerns an exercise of Ministerial discretion in the “national interest”. That national interest requires consideration be given to the direct and immediate statutory consequences of the decision: Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84] (Kenny, Flick and Griffiths JJ); AJN23 at [33]. The lawful exercise of that administrative discretion requires a proper understanding of the statutory scheme and the legal consequences to the applicant of the decision to be made. The state of satisfaction concerns the concept of the national interest.

50    Section 36(1C) does not provide for the exercise of a discretion. It provides for criteria for the grant of a visa, one of which is conditioned on the formation of a state of satisfaction. The state of satisfaction must be reached on a correct understanding of the law but the subject matter upon which the state of satisfaction much be reached is whether the applicant is a danger to the Australian community. That is quite a distinct subject matter from the national interest which entails a multifactorial evaluation of countervailing considerations of the kind discussed in AJN23. The assessment required by s 36(1C) does not require an evaluation of the relative danger posed by the applicant should he remain in immigration detention or be released into the community on a visa other than a protection visa.

51    The structure of s 36(1C) when read with s 65 of the Migration Act is binary in its application. An applicant is either considered on reasonable grounds to be a danger to the community or not. An applicant who fails to meet the criteria in s 36(1C) is not entitled to a protection visa.

52    The Minister’s contention concerning the construction of s 36(1C) is accepted.

53    Insofar as the Minister’s further contention (set out [44] above) is concerned, the Tribunal’s reasons proceed on the understanding that absent the grant of the protection visa, the applicant would remain in immigration detention. The Tribunal otherwise made no finding about the legal consequences to the applicant of the refusal of the protection visa. The Tribunal’s reasons make no reference to indefinite detention and, although recording that the delegate had determined that the applicant was a person in respect of whom Australia has protection obligations (TR [4]), the reasons make no reference to the prospect of removal to a third country. For the reasons explained above, it was not part of its task under s 36(1C) in addressing whether the applicant was a danger to the Australian community.

54    The applicant’s second ground is not made out.

Ground 3: Legal Unreasonableness

55    The applicant contended that the Tribunal’s decision was legally unreasonable for two reasons:

(1)    The process adopted by the Tribunal in reaching its decision was legally unreasonable because the Tribunal had failed to seek further information about the prospects for the applicant to obtain accommodation if he were granted a protection visa.

(2)    The Tribunal’s reasoning was legally unreasonable because in assessing whether the applicant was a danger to the Australian community, it failed to consider whether the applicant may be in indefinite immigration detention or released into the community if refused a protection visa. It was submitted that in determining whether the applicant was a danger to the community, it was necessary to perform a balancing exercise of all the circumstances, including an assessment of the relative risk to the Australian community if the applicant were released or remained in immigration detention. The Tribunal was said to have reached its decision unreasonably by not assessing the relative risks.

Consideration

56    It may be accepted that the Tribunal must exercise its statutory review function in a manner that is legally reasonable. The concept of legal unreasonableness is not confined to why a statutory decision is made, but extends to how it is made: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [91] (Gageler J).

57    There may be circumstances where a failure to exercise power to obtain further information can amount to legal unreasonableness. As the plurality of the High Court in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 explained at [20] (Kiefel CJ, Bell, Gageler and Keane JJ) (footnotes omitted):

Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an “intelligible justification” but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant.

58    In determining whether an exercise of power is legally unreasonable, it is necessary to consider the facts and the matters falling for consideration in the exercise of the statutory power: Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26]–[27] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ).

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

60    The Tribunal’s decision cannot be said to be legally unreasonable by failing to consider whether the applicant would be indefinitely detained in immigration detention. As the decision in NZYQ made clear, indefinite detention is unlawful.

61    For the reasons explained above, in addressing s 36(1C), the Tribunal was not required to engage in a comparative exercise of determining whether the applicant was a greater danger to the Australian community if granted a protection visa than if not granted that visa. Any misunderstanding the Tribunal may be inferred to have had about the consequences to the applicant if the protection visa were not granted was not logically probative of its consideration of whether the applicant is a danger to the Australian community. The failure to undertake a comparative evaluative exercise of the kind advocated for by the applicant did not amount to legal unreasonableness.

62    It follows that the appeal is to be dismissed.

Observations

63    Following the High Court’s decision in NZYQ, the applicant was released from immigration detention. Part of the Executive’s response to the decision in NZYQ was to create a new class of bridging visa (Bridging Visa R Subclass 070) to ensure that all persons released into the community were holders of some sort of visa. The applicant was issued with such a bridging visa.

64    Although this proceeding was listed for hearing in October 2024, in the days leading up to the hearing, the applicant was found by his pro bono Counsel and Australian Border Force officers collapsed in the street and unresponsive. He was admitted to intensive care. At the time the matter was heard in part in March 2025, the applicant had been detained in the custody of Victorian law enforcement authorities and remained in custody when the hearing was resumed in June 2025.

65    The applicant had been evaluated by the Tribunal as being a danger to the Australian community and therefore not entitled to a protection visa. Subsequent events suggest that the applicant’s circumstances remain a problem in search of a solution. A failure to meaningfully address his circumstances in the future may well culminate in human tragedy.

66    The Court would like to acknowledge the dedicated efforts of pro bono Counsel in this case to make contact with the applicant and assist the Court. The Minister agreed not to seek costs in the event of the dismissal of the appeal.

Associate:

Dated:    27 June 2025