Federal Court of Australia

VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983

ORDERS

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs of the application.

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

REASONS FOR JUDGMENT

BUTTON J:

Introduction

1 The Applicant was born in Zimbabwe in 1998. On 3 June 2016, the Applicant was granted a Class AH Subclass 101 Child visa (child visa). He arrived in Australia on 20 December 2016.

2 On 7 June 2022, the Applicant was convicted of offences including three counts of sexual assault, contrary to s 40 of the Crimes Act 1958 (Vic) (the Crimes Act). The Applicant received an aggregate sentence of eight months’ imprisonment and an 18-month community corrections order. On 25 July 2022, the Applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act).

3 On 22 January 2024, the Applicant applied for a Class XA Subclass 866 Protection visa (protection visa). A delegate of the Minister refused that application on the basis that the Applicant was not owed protection obligations by Australia. On 15 May 2024, the Administrative Appeals Tribunal — now the Administrative Review Tribunal (the Tribunal) — set aside the delegate’s decision and remitted the matter back to the Department of Home Affairs with a direction that the Applicant was owed protection obligations by Australia because he is bisexual and, on that basis, has a well-founded fear of persecution in Zimbabwe.

4 On 10 October 2024, a delegate of the Minister decided not to revoke the cancellation of the Applicant’s child visa. On the same day, the Applicant was issued a Subclass 080 (Bridging (Removal Pending)) visa (BVR). He was issued with a new Subclass 070 BVR on 7 November 2024, which remains in force. On 29 October 2024, the Applicant was refused a protection visa. There is a separate proceeding in this Court relating to that matter, which has not yet been heard.

5 On 2 January 2025, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of the Applicant’s child visa (the Tribunal’s decision). The Tribunal published written reasons (T).

6 The Applicant has applied for orders quashing the Tribunal’s decision and requiring that the matter be remitted to the Tribunal to be heard and determined according to law.

Grounds of review

7 By his Amended Originating Application dated 11 July 2025, the Applicant advanced three grounds of review.

8 The grounds were as follows, omitting particulars:

1. The second respondent (Tribunal) erred in finding that the applicant has been convicted of a “sexually based offence involving a child” within the meaning of s 501(6)(e)(i) of the Migration Act 1958 (Cth) (Act) (Tribunal Reasons (T) [23]).

2. The Tribunal erred in assessing the applicant’s risk of re-offending having regard to “the stress of his uncertain immigration status” (T [105]).

3. The Tribunal erred in finding that “any third country [to which the applicant might be removed] would have to be assessed as ‘safe’ in order for the Applicant to be removed” (T [138]).

Statutory context

9 The parties provided a joint book of authorities, which included extracts of the Act, as at 2 January 2025. References to the Act are to that version.

10 Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:

(a)     the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

11 Section 501(6)(e) of the Act provides that a person does not pass the character test if a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction …

12 Section 501CA(4)(b) of the Act provides that the Minister may revoke a decision to cancel a person’s visa under s 501(3A) if, amongst other things, the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

Ground 1

13 By Ground 1, the Applicant challenged the Tribunal’s finding that the Applicant had been convicted of a “sexually based offence involving a child” within the meaning of s 501(6)(e)(i) of the Act.

Tribunal’s reasoning

14 In concluding that the Applicant’s visa was subject to mandatory cancellation pursuant to s 501(3A) of the Act, the Tribunal stated as follows (T [23]–[24], citations omitted):

The transcript of the proceedings of the Magistrates Court of Victoria at Melbourne dated 7 June 2022, records that one of the Applicant’s sexual assault victims was aged 17, which constitutes sexually based offending involving a child (regardless of whether the offence itself has the age of the victim as one of its elements). The Tribunal is therefore satisfied that the Applicant has been convicted of a sexually based offence involving a child, and thus falls within s 501(6)(e)(i).

Given this, the Tribunal finds that the Applicant does not pass the character test and his Subclass 101 Child visa is subject to mandatory cancellation.

Applicant’s submissions

15 The Applicant advanced Ground 1 on two alternative bases:

(1) The expression “child” in s 501(6)(e)(i) of the Act means a person under the age of 16.

(2) The expression “sexually based offences involving a child” in s 501(6)(e)(i) means sexually based offending where the age of the victim is an element of the offence.

16 The Applicant contended that success on either of the above bases would mean that the Applicant has not been convicted of a sexually based offence involving a child and therefore did not fail the character test on the basis of his sexually based offending.

The meaning of “child” in s 501(6)(e)(i) of the Act

17 The Applicant submitted that the text, context and purpose of s 501(6)(e)(i) of the Act supports a finding that “child”, for the purposes of that provision, means a person under the age of 16.

18 As to text, the Applicant argued that the term “child” is not defined in the Act except in relation to descent. The Applicant submitted that, in ordinary usage, the word “child” can refer to a person under the age of 16 or a person under the age of 18. However, he drew attention to other criminal law statutes — specifically the Criminal Code Act 1995 (Cth) (the Criminal Code), and the New South Wales and Northern Territory criminal statutes — which distinguish between sexual offences against a “child” (being a person under the age of 16) and a “young person” (being a person aged 16 or 17). The Applicant suggested that this “shows that an available meaning of ‘child’, in the context of sexual offences, is a person under the age of 16”.

19 As to context, the Applicant relied on the following matters:

(1) First, the surrounding provisions of s 501(6)(e)(i) of the Act demonstrate that the character test is concerned with grave offences — for example, s 501(6)(ba)(iii), which provides that a person does not pass the character test if the Minister reasonably suspects that the person has been involved in “the crime of genocide, a crime against humanity, a war crime, [or] a crime involving torture or slavery”. The Applicant argued that this shows s 501(6) is concerned with very serious offences. On the basis that offences committed against children under the age of 16 are more serious than offences against persons aged 16 years and older, the Applicant contended s 501(6)’s concern with very serious offences, read as a whole, supports construing s 501(6)(e)(i) as limited to offences against persons under the age of 16.

(2) Second, in certain other provisions of the Act that refer to children, such as ss 76AAA(1)(d)(iii) and 199D(4), the Act specifically refers to children “under 18”. The Applicant submitted that “[t]he fact that s 501(6)(e) does not refer to a child ‘under 18’ is at least consistent with s 501(6)(e) being limited to offences against persons under the age of 16”.

(3) Third, even among the criminal statutes of Australian jurisdictions that do not distinguish in terms between a “child” and a “young person”, a distinction is typically drawn between sexual offences against persons under the age of 16 and persons aged 16 or 17. The Applicant submitted that sexual offences against 16 and 17-year-olds are generally treated the same as offences against adults unless there is an aggravating factor, such as a relationship of care, supervision or authority between the offender and the victim. The Applicant argued that “[t]his general recognition that there is a distinction between sexual offences against persons under the age of 16 and sexual offences against persons aged 16 or 17 years old” supports his proposed construction of “child” for the purposes of s 501(6)(e)(i).

20 As to purpose, the Applicant argued that the purpose of s 501(6)(e)(i) “is to attach grave consequences to grave offences” and, in circumstances where “child” is undefined and gives rise to competing constructions, that purpose supports construing “child” as a person under the age of 16.

The meaning of “sexually based offences involving a child” in s 501(6)(e)(i) of the Act

21 The Applicant’s alternative argument was that the expression “sexually based offences involving a child” in s 501(6)(e)(i) of the Act should be construed as referring to sexual offences where the age of the victim is an element of the offence.

22 The Applicant made this submission notwithstanding the statement of Abraham J in HWLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1039 (HWLJ) at [43] that “if the complainant of a sexual offence was a minor, that offence could satisfy s 501(6)(e)(i) of the Migration Act, regardless of whether the age was an element of the offence”. The Applicant argued that this statement is obiter dicta and not binding on this Court.

23 The Applicant advanced three reasons why, in his submission — and contrary to HWLJ — the expression “sexually based offences involving a child” should be understood as referring to sexual offences where the age of the victim is an element of the offence.

24 First, s 501(6)(e)(i) is concerned with grave offences, and the “special gravity” of sexual offences against children is recognised in criminal statutes that create offences where the age of the victim is an element of the offence. The Applicant drew attention to the distinction between: s 40 of the Crimes Act, being the general sexual assault provision under which the Applicant was convicted (which does not specify the age of the victim as an element of the offence); s 49D of the Crimes Act, which is an equivalent provision where the victim is under the age of 16; and s 49E of the Crimes Act, which is a sexual assault provision that applies where the victim is 16 or 17 and under the care, supervision or authority of the offender.

25 The Applicant submitted (bold emphasis added):

There is no specific provision dealing with sexual assault where the victim is 16 or 17 years old unless the victim is under the offender’s care, supervision or authority. This reflects the judgment of the Victorian legislature that, while all sexual offences are serious, for the purposes of criminal liability, sexual assault of a 17-year-old is not sufficiently distinct from sexual assault of an adult to justify separate treatment. It would be inconsistent with the distinction drawn by the Crimes Act 1958 (Vic) and with the purpose of s 501(6) (described above) for an offence against s 40 of the Crimes Act to be treated as a sexually based offence involving a child under s 501(6)(e) of the Migration Act.

26 Second, while the age of the victim is not in dispute in the present case, there may be other cases in which a victim’s age is in doubt or disputed. The Applicant argued that the requirement under s 501(6)(e)(i) that a person be convicted of an offence supports the conclusion that a finding as to the victim’s age must be a finding in criminal proceedings to the criminal standard of proof (and not a finding by the Minister or Tribunal on the balance of probabilities). The Applicant submitted that this can only occur if the age of the victim is an element of the offence. The Applicant further submitted that any requirement for the matter of a victim’s age to be determined by the Minister or Tribunal on the civil standard could lead to inconsistency between the criminal and administrative processes, and avoid the protections of the criminal process, which were said to be “an important counterbalance to the severity of automatic visa cancellation”.

27 Third, the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) states (at [49]):

For the purposes of new paragraph 501(6)(e) of the Migration Act, the term “sexually based offences involving a child” would include, but would not be limited to, offences such as child sexual abuse, indecent dealings with a child, possession or distribution of child pornography, internet grooming, and other non-contact carriage services offences.

28 The Applicant argued that, while the offences listed in the above extract are expressly inclusive, “it is significant that each of the offences mentioned is an offence where the age of the victim is an element of the offence”. This was said to support the construction advanced by the Applicant in the second limb of Ground 1.

Minister’s submissions

The meaning of “child” in s 501(6)(e)(i) of the Act

29 The Minister submitted that, for the purposes of s 501(6)(e)(i), “child” means a person under the age of 18.

30 The Minister submitted that, as a matter of ordinary language, the word “child” can refer to either “a state or age” or a person’s “correlation to a parent”, and that s 501(6)(e)(i) uses the word “child” in the first sense. In advocating for the “a state or age” definition, the Minister acknowledged that the definition of “child” in s 5CA of the Act relates only to the “correlation to a parent” definition and therefore the s 5CA definition is not relevant in construing s 501(6)(e)(i).

31 To rebut the Applicant’s argument that “according to ordinary usage”, the word “child” is sometimes used to mean a person under the age of 16, the Minister advanced four arguments:

(1) First, the Applicant’s examples of a distinction being drawn between sexual offences against a “child” (being a person under the age of 16) and a “young person” (being a person aged 16 or 17) in the Criminal Code, and the New South Wales and Northern Territory criminal statutes are all examples which are affected by their statutory definition or exposition. The Minister submitted that the Applicant himself substantiated this point by noting contrary definitions in other legislation, of which one such example is the operation of the Sex Offenders Registration Act 2004 (Vic) which defines “child” in s 3(1) as “any person who is under the age of 18 years”.

(2) Second, while the Applicant relies on provisions in the Criminal Code where “child” means a person under the age of 16, “child” is not defined consistently throughout in that legislation. The Minister highlighted that “child abuse material” is defined in s 473.1 (for the purposes of s 273.1) as:

(a)     material that depicts a person, or a representation of a person, who:

(i)    is, or appears to be, under 18 years of age…

(3) Third, even within the Act itself, two provisions (ss 76AAA(1)(d)(iii) and 199D(4)) refer to “a child under 18”. The Minister also referred to s 4AAA of the Immigration (Guardianship of Children) Act 1946 (Cth) which also refers to a “child” as a person who “has not turned 18”.

(4) Fourth, the Minister submitted that to focus on domestic legislation only in construing the term “child” is to ignore the fact that s 501(6)(e) includes convictions or findings of guilt by both Australian and foreign courts. It was said that the Applicant’s reliance on local criminal laws’ treatment of sexual offences and definitions of “child” ignores the broader international context within which s 501(6)(e) operates.

32 In contending that “child” in s 501(6)(e)(i) means a person under the age of 18, the Minister set out several dictionary definitions of the term “child”, none of which define “child” as a person under 16 years of age. Rather, the Minister submitted, an analysis of the various definitions reveal two common meanings of “child”: a person below the age of puberty (pre-puberty) or a person below the age of majority (pre-majority).

33 Considering these two definitions, the Minister argued that given the limited workability of the pre-puberty definition, “child” should be construed in s 501(6)(e)(i) according to the pre-majority definition. Specifically, the Minister relied on two arguments to support adopting the pre-majority definition:

(1) First, relying on Prowse v McIntyre (1961) 111 CLR 264 in which, at 268, Dixon CJ observed that:

[there] is a positive rule of law, established in or before the seventeenth century, that an infant comes of age on the commencement of the last day which completes his twenty-first year …

the Minister submitted that this coming of age (or age of majority) — 21 years — has since been changed to 18 years in all States and Territories: Age of Majority Act 1974 (ACT) s 5; Age of Majority Act 1974 (NT) s 4; Age of Majority Act 1973 (Tas) s 3; Age of Majority Act 1977 (Vic) s 3; Age of Majority Act 1972 (WA) s 5; Age of Majority (Reduction) Act 1971 (SA) s 3; Law Reform Act 1995 (Qld) s 17; Minors (Property and Contracts) Act 1970 (NSW) s 9(1). The Minister also contended that although the common law position, according to which the age of majority was 21, was originally modified by statute so that the age of majority became 18 years of age,  18 years of age has long since come to represent the commonly understood position as to when a person achieves his or her majority.

(2) Second, Article 1 of the United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (the Convention), which Australia ratified in 1990, provides that “child” means “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. The Minister argued that the Convention, and particularly the definition of “child’ was a fixture of migration law before the introduction of s 501(6)(e)(i) in 2014, relying on cl 9.3(2) of the then applicable Minister for Immigration and Citizenship (Cth), Direction No 55: Visa Refusal and Cancellation under s 501 (25 July 2012), which required decision makers to consider whether cancellation of a visa was or was not in the best interests of the child, wherein “consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made”.

34 In relation to the Applicant’s submission that s 501(6)(e)(i) is concerned with “grave offences” and sexual offences against those under 16 years of age are generally more serious than sexual offences against those aged 16 or 17, the Minister submitted that this comparison says very little about whether Parliament might have considered sexual offending against 16 and 17-year-olds to be deserving of exposure to visa cancellation.

35 The Minister also submitted that the object of the 2014 legislative amendments which introduced s 501(6)(e)(i) was to broaden the grounds for not passing the character test: Australia, House of Representatives, Debates (2014) Vol 15, p 10326 (Minister Morrison). Specifically, s 501(3A)(a)(ii) which provides for mandatory cancellation under s 501(6), was designed to “ensure noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved”: Australia, House of Representatives, Debates (2014) Vol 15, p 10328 (Minister Morrison).

36 Accordingly, the Minister submitted that the Applicant’s position in relation to “grave offending” contradicts the clear legislative intention to broaden the applicability of the “character test” so as to reduce the risk to the Australian community. The Minister argued that other examples in s 501 demonstrate clearly that “gravity” of offending is not a determinative factor in whether a person passes the character test: for example, a person may fail the character test by reason of an offence committed while the person was in immigration detention, regardless of its gravity (s 501(6)(aa)(i)), or by reason of having received multiple modest sentences or an aggregate sentence for various discrete offending (ss 501(7)(c)–(d) and 501(7A), read together with s 501(6)(a)).

The meaning of “sexually based offences involving a child” in s 501(6)(e)(i) of the Act

37 The Minister advanced four arguments in response to the Applicant’s contention that s 501(6)(e)(i) only applies to sexually based offending where the age of the victim is an element of the offence.

38 First, the Minister argued that this construction would result in an unlikely outcome as various crimes against a child, such as incest against a child pursuant to s 50C of the Crimes Act, would not fall within the terms of s 501(6)(e)(i), because the age of the victim is not an element of the offence of incest.

39 Second, the Minister submitted that, on the Applicant’s construction, it would be difficult to understand s 501(6)(f)(iv), which adopts similar language in relation to a “crime involving torture”. The Minister contended that it would be challenging to “conjure any meaningful operation for such a provision” if the provision was limited to crimes where “torture” was an element of the offence.

40 Third, in dealing with the Applicant’s argument regarding the potential risks arising from the matter of a victim’s age being determined on the civil standard of proof, the Minister relied on HWLJ at [38] (Abraham J) to support his position that the Tribunal is not permitted to impugn the findings on which the conviction and sentence were based. Nonetheless, the Minister submitted that “it may be supposed that sexual offending against a minor will usually be treated as an aggravating circumstance of the offending and will therefore be exposed in the sentencing court’s reasons for sentence”, as was the case in this matter.

41 Lastly, the Minister submitted that the Applicant’s argument ignores the fact that s 501(6)(e)(i) also applies to convictions of foreign courts “whose procedure and substantive law may be very different”.

Consideration

42 Section 501(6) stipulates when a person does not pass the character test. As noted at paragraph 11 above, one such circumstance is where “a court in Australia or a foreign country” has “convicted the person of one or more sexually based offences involving a child”: s 501(6)(e)(i).

43 Contrary to the Applicant’s submissions, the Tribunal did not err in finding that he had been convicted of a sexually based offence involving a “child” where the victim in question was 17 years old.

44 The Applicant’s first argument is that consideration of the text, context and purpose of s 501(6) shows that “child” in s 501(6)(e)(i), means a person under the age of 16.

45 That argument must be rejected.

46 It was common ground that the word “child” is not defined in the Act for the purposes of its operation in s 501(6)(e)(i), and that the definition of that word in s 5CA, in relation to descent, is irrelevant in construing s 501(6)(e)(i).

47 The Applicant accepts that, as a matter of ordinary language, the expression “child” is “sometimes” used to refer to a person under the age of 18, but says the expression is also “sometimes” used to refer to a person under the age of 16. The Applicant sets these two meanings up as equally available as a matter of ordinary language.

48 While, in some contexts, the word “child” is used in ordinary language in contradistinction to other terms signifying the age, or stage of life, of the person being referred to — eg “teenager” versus “child”, “baby” versus “child” — there is nothing to suggest that s 501(6)(e)(i) uses the word “child” in contradistinction to “baby” or “teenager”, or some life stage such as being pre-pubescent. Section 501(6)(e)(i) can only sensibly operate where “child” is construed as a person of a certain maximum age, measured in years.

49 I do not accept the Applicant’s argument that, as a matter of ordinary language, the expression “child” is sometimes used to refer only to a person under the age of 16, and would exclude a person aged 16 or 17. As a matter of ordinary language, a “child” is someone who is not an adult, and means someone under the age of 18. That is the case irrespective of the array of statutes, passed by Australian states in the 1970s (on which the Minister relied) altering the common law position so that the age of majority became 18.

50 The Applicant relies on a handful of criminal statutes that define the word “child” in contradistinction to the expression “young person”. However, the fact that criminal statutes in some, but far from all, cases deploy statutory definitions of “child” and draw a distinction between a “child” and a “young person”, does not support the Applicant’s contention as to what “child” means in the context of s 501(6)(e)(i), as a matter of ordinary language and construing that provision in context.

51 In addition, and as the Minister points out, there are also other pieces of legislation relating to sexual offences that refer explicitly to a child as someone under the age of 18, eg the Sex Offenders Registration Act 2004 (Vic) — the very statute under which the Applicant has been entered on the sex offenders register — defines a “child” as a person under the age of 18. Likewise, the Criminal Code defines “child abuse material” to refer to certain material depicting a person who is, or appears to be, under 18 years of age.

52 While the term “child”, as it is used in s 501(6)(e)(i), must of course be construed in context, I do not accept that the context and purpose support the contention that “child” in s 501(6)(e)(i) means someone under the age of 16. The Applicant urges that s 501(6) shows that the character test is concerned with “grave” offences, consonant with the “grave” consequences of failing the character test. This argument fails to have regard to the very wide array of circumstances the legislature has prescribed as resulting in a person failing the character test. A review of s 501(6) will show that a person may fail the character test, for example, by virtue of the circumstances in which an offence was committed, irrespective of the nature of the offence (see, eg s 501(6)(aa)), or because the Minister reasonably suspects that the person used to be associated with a group, organisation or person that used to be involved in criminal conduct of any kind (s 501(6)(b)). Further, the Applicant’s argument suffers from making an a priori assumption that Parliament did not regard a sexual offence against a 16 or 17-year-old as serious enough to warrant the perpetrator failing the character test. Such a priori assumptions are to be eschewed in construing legislation: Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [26] (French CJ and Hayne J).

53 The fact that some other pieces of criminal legislation distinguish between sexual offences against persons under the age of 16 and other victims does not support the Applicant’s contention that “child” in s 501(6)(e)(i) means someone under 16 years of age. Parliament has legislated on the basis that persons will fail the character test if they are convicted of a “sexually based offence” and the offence is one “involving” a child. There is simply nothing in the context and purpose of the legislation that supports the Applicant’s contention that “child” must be construed as referring to someone under the age of 16.

54 The Applicant’s second argument was that the expression “sexually based offences involving a child” means offences in which the age of the victim is an element of the offence. The Applicant’s submissions in support of this ground repeat his submissions about the asserted “gravity” of offences that result in a person not passing the character test. I have already rejected that argument above. I also accept the Minister’s argument that the Applicant’s contention must be rejected on the basis that it would lead to absurd results, such as a person not failing the character test pursuant to s 501(6)(e)(i) if he or she was convicted of the crime of incest and the victim was a young child, simply because the age of the victim is not an element of the offence of incest under s 50C of the Crimes Act. I do not accept that the Applicant’s construction is saved from operating unreasonably having regard to the incest example on the basis, which the Applicant advanced in oral submissions, that other offences would likely be charged alongside a charge of incest.

55 Further, the language of s 501(6)(e)(i) refers to offences “involving” a child. In my view, the use of the word “involving” refers to the factual characteristics of the offence in question; ie was the sexual offence one that “involved” a child, or not? That drafting approach and language is used in other sub-sections of s 501(6), such as s 501(6)(f), which refers to individuals charged with, or indicted for, “a crime involving torture”. I accept the Minister’s submission that it is not at all clear how that provision would operate were “torture” required to be an element of the offence in order for such an individual to fail the character test.

56 The Applicant also argues that the potential for the age of a victim to be in doubt or disputed in a criminal context where the administrative decision maker (the Minister or Tribunal) may find the victim was of a certain age on the civil standard, supports his construction. I do not accept that argument. Many elements of s 501(6) do not rest on offences being committed at all and, ipso facto, do not assume that the matters which Parliament has legislated will result in a person failing the character test must be established to the criminal standard of proof. For example, s 501(6)(d) refers to there being a “risk” that the person will behave in a certain way — many instances of which would not necessarily involve the commission of an offence — if allowed to remain in Australia. Similarly, s 501(6)(c)(ii) stipulates that a person will fail the character test if his or her “past and present general conduct” is such that the person is not of good character.

57 Lastly, I do not regard the extract of the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) as supporting the Applicant’s contention that the victim being a “child” must be a necessary element of the offence in order to trigger s 501(6)(e)(i). The extract relied upon is explicitly couched in inclusive language. The offences to which it refers are put on the basis that “sexually based offences involving a child” would include those offences — a matter which is obvious — but those examples were expressly listed on the basis that the statutory language would also include other offences.

58 Moreover, the Applicant’s contention is difficult to reconcile with Parliament’s express stipulation that s 501(6)(e)(i) includes offences for which a person may have been convicted by a “foreign court”. The Applicant’s construction hobbles, or at least severely restricts, the operation of that limb, by confining its operation by reference to the technical elements of offences in other countries, right around the world. In that regard, and contrary to the Applicant’s oral reply submission regarding the lack of evidence before the Court as to the content of foreign laws, it is not to the point that the Minister has not adduced evidence of the elements of sexually based offences pursuant to the laws of other countries. The point is not what the elements of such offences may be under the laws of hundreds of different countries, but that it is unlikely that Parliament legislated on the basis that the character test would only be failed when a person has been convicted by a foreign court of a sexually based offence involving a child if the age of the victim is formally an element of the offence charged and tried in the foreign court.

59 Rather, what is clear from s 501(6) is that Parliament has referred explicitly to the commission of some offences — eg an offence against s 197A of the Act in s 501(6)(ab) — but has also legislated other triggers for failure of the character test on a qualitative basis. While it must be borne in mind that only a sub-set of the many circumstances that result in a person failing the character test will result in mandatory cancellation of a visa pursuant to s 501(3A), that does not undermine the point that Parliament has legislated the circumstances in which a person will fail the character test in a wide variety of ways and using concepts that are, in many instances, qualitative.

60 In the case of s 501(6)(e)(i), the question is whether the offence was “sexually based” and “involving a child”. The term “sexually based” is not a term of art or tied to any particular statutory concept of when an offence will be “sexually based”. The term “sexually based” directs attention to the qualitative aspects of the offence. Likewise, the question of whether the offence is one “involving a child” is one directed to the qualitative features of the offending. In my view, Parliament did not legislate on the basis that a person will only fail the character test where being a “child” is an element of the offence.

61 For completeness, I note that the Applicant relied on other sections of the Act — ss 76AAA(1)(d)(iii) and 199D(4) — referring to “a child under 18”, drawing a contrast with s 501(6)(e)(i), which merely refers to a “child”. Both of the sections relied on by the Applicant were introduced in 2024 and post-dated the introduction of s 501(6)(e)(i) by a decade. I do not consider the specificity in those provisions — a child “under 18” — illuminates Parliament’s intent in legislating in respect of “sexually based offences involving a child” in s 501(6)(e)(i). They certainly do not suggest a parliamentary intention to limit s 501(6)(e)(i) to sexually based offences against persons under 16.

62 For the foregoing reasons, s 501(6)(e)(i) uses the ordinary language meaning of the word “child”, which means someone who is under the age of 18, and does not require that the victim being a “child” is an element of the offence.

Ground 2

63 By Ground 2, the Applicant contends that the Tribunal erred in assessing his risk of reoffending having regard to “the stress of his uncertain immigration status” (T [105]).

Tribunal’s reasoning

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.

Applicant’s submissions

66 The Applicant argued that the Tribunal acted unreasonably, irrationally or illogically by taking into account “the stress of [the Applicant’s] uncertain immigration status” when considering the Applicant’s risk of reoffending.

67 The Applicant submitted that any assessment of the Applicant’s risk of reoffending must be conducted on the assumption that the cancellation of the Applicant’s visa was revoked (ie that his child visa was restored). The Applicant argued that the Tribunal’s reference to his “uncertain immigration status” — which, the Applicant submitted, was a reference to his status as a BVR holder and the possibility “that he could be removed to a third country at some time in the future” (T [139]) — when considering the risk of the Applicant reoffending if his visa were restored was illogical. It was illogical because the Applicant’s immigration status was only “uncertain” by reason of the cancellation of his child visa.

68 If the Applicant’s child visa were restored, his immigration status would “be no more ‘uncertain’ than that of any other permanent resident”. The Applicant noted (emphasis in original):

On the Tribunal’s own reasoning, if the cancellation of the applicant’s visa is revoked, that will reduce the risk of re-offending. That is because it will remove the stress associated with the applicant’s immigration status and reduce the risk of the applicant resuming heavy drinking.

69 The Applicant contended that, in the context of the matter before it, the Tribunal had to compare the Applicant’s risk of reoffending if his child visa was restored, as against the risk he posed if he remained on the BVR, which was exposed to the risk of being cancelled if arrangements were made for the Applicant’s removal to a third country. Whereas the former would see the end of the Applicant’s uncertain visa status, the latter would not, and it was that latter circumstance that would see the Applicant exposed to the stress of an uncertain immigration status.

70 The Applicant argued that this error was material because it led to the Tribunal giving greater weight to the risk of the Applicant reoffending than it would otherwise have given. More than that, it was a step in the Tribunal’s reasoning by which it assessed the risk of the Applicant reoffending as being moderate, and higher if he resumed drinking heavily, which was a factor the Tribunal gave weight in favour of not revoking the cancellation of the Applicant’s child visa.

71 The Applicant concluded that, had the Tribunal not fallen into error in this way, there is a realistic possibility that the Tribunal would have found that the Applicant’s efforts to address his prior alcohol abuse reduced the risk of his reoffending to an acceptable level — which, in turn, may have led to a different decision: citing LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

Minister’s submissions

72 The Minister advanced two arguments in response to Ground 2:

(a) the Tribunal’s observation that the Applicant had the potential to resume heavy drinking again, particularly given the uncertainty of his immigration status, was not unreasonable, irrational or illogical; and

(b) even if it was, it was not a jurisdictional error.

The tribunal did not act unreasonably, irrationally or illogically in considering the stress of the Applicant’s uncertain immigration status when considering the Applicant’s risk of reoffending

73 The Minister argued that to understand the Tribunal’s reference to the Applicant’s uncertain immigration status when considering the Applicant’s risk of reoffending, it is necessary to put the comment in its context within the Tribunal’s decision.

74 To establish the relevant context, the Minister submitted as follows (footnotes omitted):

33    The evidence before the Tribunal, and the Tribunal’s reasoning, proceeded on the basis that the applicant’s overall risk of recidivism was in part related to the prospect of alcohol use and that he used alcohol to manage stress (see T: [31], [33], [68]-[69], [73]-[75], [78], [80]-[83], [85]-[87], [93]). At [96] the Tribunal noted:

Ms Bovenkerk [a forensic psychologist] identified that the applicant 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).

34    The applicant gave evidence that he intended to continue to see his psychologist, but also that he had been drinking again on weekends (T: [97]-[98]). He also noted he was subject to “considerable monitoring” as a result of his BVR conditions, his community corrections order, and registration on the Sex Offenders Register (T: [101]). At the hearing, the applicant also expressed fear about being removed to Zimbabwe or a third country.

35    Although the Tribunal gave some weight in favour of revoking the cancellation of the visa, based upon the applicant’s abstinence while in jail and immigration detention, his alcohol and drug counselling, and psychological counselling, the Tribunal was concerned about the durability of the applicant’s rehabilitation, in part because “he has chosen to drink again … 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” (T: [103]).

75 The Minister submitted that it was against this backdrop of the Applicant choosing to drink again that the Tribunal saw fit to consider the relationship between the stress of the Applicant’s uncertain immigration status and the Applicant’s risk of reoffending. In other words, the Minister contended that the Tribunal considered the uncertainty of the Applicant’s immigration status as a factor that may have influenced the Applicant’s decision to recommence drinking already and that could also contribute to increasing the Applicant’s risk of recommencing heavy drinking from moderate to high.

76 Ultimately, the Minister submitted (emphasis added):

Taking into account the stress arising from the applicant’s uncertain immigration status in this context was not unreasonable, irrational or illogical. Even if the applicant’s immigration status were to ultimately resolve favourably by the Tribunal’s decision, the stress associated with it would not necessarily automatically cease to be a factor in the applicant’s risk profile. It is conceivable that a propensity to engage in heavy drinking as a result of stress could be the accumulation of various factors over time.

No jurisdictional error

77 The Minister submitted that “[n]ot every integer of fact-finding must be coherent to support a valid ultimate decision” as is observed in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS), at [130], where Crennan and Bell JJ stated that “[n]ot every lapse of logic will give rise to jurisdictional error”. Additionally, the Minister relied on Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265; (2006) 90 ALD 614 at [11], where Allsop J stated that:

one illogical aspect of fact finding in a wider scheme of factual analysis will rarely betray … a failure to attend to the jurisdictional task … all one has really done, at best, is demonstrate how an error of fact came to be made.

78 Additionally, the Minister pointed to the decision of the Full Court in XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 (XRZG), at [63]–[64], where Markovic, Cheeseman and Horan JJ stated (emphasis added):

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 e.g. 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] HCA 32; 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).

79 Relying on XRZG, the Minister argued that:

(a) the concern regarding the Applicant’s uncertain immigration status only related to the “potential” for the Applicant to resume heavy drinking, given the Applicant had already resumed drinking;

(b) the relationship between the uncertainty of the Applicant’s immigration status and the Applicant’s risk of reoffending was only one of many factors considered by the Tribunal in making its decision; and

(c) even if the Applicant did not ultimately resume heavy drinking, the Tribunal nonetheless considered the Applicant to be at moderate risk of reoffending (T [106]).

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]).

81 Additionally, the Minister listed several other matters that the Tribunal considered in determining that the nature and seriousness of the Applicant’s offending weighed against revoking the cancellation of the Applicant’s visa, as required by the Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 110: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation under s 501CA (7 June 2024) (Direction 110).

82 After listing the Tribunal’s findings in relation to cls 8.1.1 and 8.1.2 of Direction 110, and highlighting that the Tribunal’s decision appears to have given particular emphasis to the nature and seriousness of the conduct as against the other factors, the Minister ultimately submitted that the observation in relation to the uncertainty of the Applicant’s immigration status was “but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion”, adopting the language used by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 (SZUXN) at [55], cited with approval in Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 (Muggeridge) at [35] (Charlesworth J, Flick and Perry JJ agreeing).

The Minister’s oral submissions

83 In oral submissions, the Minister augmented the contention, raised in passing in his written submissions, that the uncertainty of the Applicant’s visa situation would have an ongoing effect even if his child visa was restored to him.

84 It will be recalled from paragraph 76 above that the Minister submitted that taking into account the stress arising from the Applicant’s uncertain immigration status was not unreasonable, irrational or illogical because, even if the cancellation of the Applicant’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 applicant’s risk profile”. In oral submissions, the Minister contended that the Tribunal’s reference (at T [105]) to “the stress of [the Applicant’s] uncertain immigration status” being part of the reason the Tribunal was concerned that the Applicant 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 Applicant’s drinking. On this reading, the Tribunal was expressing a concern that even if the cancellation of the Applicant’s child visa were revoked, the stress of his immigration situation may continue to have an influence on the Applicant, raising the prospect of his returning to heavy drinking.

85 In oral submissions, and in the course of addressing with the bench how statements in the cases the Minister relied on sit with the High Court’s decision in LPDT, the Minister contended that:

(a) the issue raised by Ground 2 concerns alleged illogicality in an intermediate finding of fact as to the level of risk of the Applicant reoffending;

(b) the asserted class of error is one that has a “higher threshold” or “higher standard” than the materiality test specified by the High Court in LPDT at [7];

(c) consistent with decisions that pre-date LPDT, it is only where an error of the kind asserted is a “critical step” on which the ultimate decision was based that illogicality will constitute jurisdictional error; and

(d) the application of this higher standard is to be understood as a function of the general reluctance of courts to delve into the fact finding of administrative decision makers.

86 The Minister relied, in particular, on the decision of the Full Court in Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277 at [47] (Masi-Haini); as well as XRZG at [63]–[64], and CRH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1239 at [19] and [21].

87 In response to the Minister’s oral submissions, the Applicant contended that the illogicality at issue in the present case does not entail the Court getting involved in reviewing an administrative decision maker’s fact finding and that the test of materiality is to be applied based on LPDT and not on the premise that there is some higher or different standard. The Applicant submitted that, to the extent that it is necessary to reconcile the cases concerning illogicality that predate LPDT with that decision, once it is appreciated that references to errors being “critical” do not mean something different from saying that the errors must be “material” in order to be jurisdictional, there is no tension.

Consideration

88 Applying Direction 110, the Tribunal considered “the risk to the Australian community should the [Applicant] commit further offences or engage in other serious conduct”. The protection of the Australian community from criminal or other serious conduct is one of the five primary considerations stipulated by Direction 110. Consistent with the relevant parts of Direction 110 (particularly cl 8.1.2, referred to at T [62]), the Tribunal considered the nature of the harm that might result, were the Applicant to reoffend. The Tribunal also addressed the risk of the Applicant reoffending.

89 The Tribunal’s conclusion on the risk of the Applicant reoffending was as follows (T [106]):

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.

90 The Tribunal’s statement, on which Ground 2 fixes, was made in the course of the Tribunal’s reasoning regarding the connection between the Applicant’s propensity to reoffend, and his drinking. It was in that context that the Tribunal referred to the stress of the Applicant’s immigration status, along with his limited support from family and friends, in expressing its concern that the Applicant has the “potential to resume heavy drinking again”, which would elevate his risk of reoffending beyond the moderate risk identified by Ms Bovenkerk in her report from February 2024.

91 I reject the Minister’s argument that the concern the Tribunal’s observation was directed to was that the Applicant 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 Applicant’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 Applicant “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 Applicant would resume drinking heavily, and were directed to the future.

92 As the task the Tribunal was applying itself to was an assessment of the risk to the Australian community, were the Applicant to reoffend, that exercise logically had to be predicated on the Applicant 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 Applicant’s visa status that could or would contribute to the potential for the Applicant to resume drinking heavily.

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

94 That conclusion alone does not, however, establish jurisdictional error. In LPDT, the plurality commenced its reasons with a salutary reminder that jurisdictional error can arise where there is a breach of an express or implied condition of a statutory conferral of decision making authority: LPDT at [2]. The plurality identified, among the types of error on the part of a statutory decision maker that can result in jurisdictional error, “in some cases, making an erroneous finding or reaching a mistaken conclusion” (at [3]).

95 The illogical reasoning identified affects a finding of fact made by the Tribunal on its way to ultimately determining that the cancellation decision should not be revoked. The finding of fact was that “the Applicant is at moderate risk of reoffending and at higher risk of doing so if he resumes drinking heavily” (T [106]). While couched in contingent language — “if he resumes drinking heavily” — the Tribunal’s reasoning clearly took in its anterior factual conclusion that there was a risk that the Applicant would resume drinking heavily (T [105]).

96 In SZMDS, Crennan and Bell JJ said as follows regarding when “illogicality” or “irrationality” will be sufficient to give rise to jurisdictional error (at [130]–[131] and [135], emphasis added):

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.

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.

…

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. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.

97 This is not a case in which the relevant illogicality is in respect of a matter on which reasonable minds might differ. The Minister did not contend otherwise. Rather, the Minister’s case was that, if the illogicality is established (which I have found is the case), it does not rise to the level of jurisdictional error.

98 In some cases, the charge of illogicality or unreasonableness is laid against the decision maker’s ultimate decision. That is not the case here. Rather, the charge of illogicality pertains to a factual matter — the risk of the Applicant resuming heavy drinking — which was itself an integer in the conclusion that the Tribunal reached regarding the risk of the Applicant reoffending. Jurisdictional error can arise from illogicality or irrationality affecting findings “on the way” to a final conclusion: SZMDS at [132]; see also SZUXN at [54] (Wigney J, citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [151]–[153]; and SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]–[62]). The question, then, is when illogicality or irrationality in relation to such an intermediate step will result in jurisdictional error being established.

99 There is substantial authority on this question. Most of that authority pre-dates LPDT. Although I have concerns — which were discussed extensively with the Minister’s counsel during the hearing — that that body of case law is not easy to reconcile with what the High Court said about materiality in LPDT, I have concluded that I should continue to apply it as LPDT does not itself indicate that that authority is no longer sound, and the body of authority in question includes a Full Court decision post-dating LPDT, which maintains that body of authority (albeit in obiter dicta). There is also no indication in LPDT that the High Court intended to qualify what Crennan and Bell JJ said about irrationality and illogicality in SZMDS, including that not every lapse of logic will give rise to jurisdictional error.

100 There are two Full Court decisions which serve to explain when irrationality or illogicality will constitute jurisdictional error. The first is Masi-Haini, which was decided in 2023. Masi-Haini concerned a decision of the Minister refusing to revoke a visa cancellation made on character grounds. The Minister treated a statement by Mr Masi-Haini that “joining this club was the apex of my decline as a moral member of society” as evidence that, when he joined a particular motorcycle gang, Mr Masi-Haini knew of the gang’s outlaw status and involvement in criminal activity.

101 The Full Court (Markovic, Meagher and Kennett JJ) agreed with the primary judge that the statement in question “did not logically support” the finding that the Minister drew from it, but disagreed that there was no evidence or other material to support the finding (at [34]–[35]). In light of the other material before the Minister, and approaching the matter on the basis that the finding was impugned on the grounds that there was no evidence to support it, the Full Court considered that no legal error in the Minister’s decision making had been established (at [44]). While the Full Court considered that the Court should not entertain the attempt, on the appeal, to recast the error as one involving “illogicality” in reasoning (cf a lack of evidence), the Full Court went on to explain that, even if the point were considered on the basis of illogicality, no jurisdictional error had been established.

102 In relation to the contention of illogicality, the Full Court said as follows, relevantly to the issues in the present case (at [47] and [50]–[52], bold emphasis added):

We have nevertheless considered what would follow from the conclusion, with which we expressed agreement above, that the Minister’s reasons at [44] of the Minister’s Decision include a faulty (or “illogical”) step in fact-finding. To be clear, in our view, it was open to the Minister on the material to make the finding that she made; but the way that she in fact reached the finding involved a misunderstanding of the effect of the piece of evidence that she relied on.

…

Referring to a number of earlier cases, the Court observed at [33] that “the characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made”. At [35], the Court framed the ultimate question as:

… whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences supported by logical grounds, 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.

(Citations omitted and emphasis added.)

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) 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 (SZMDS) 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.

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.

103 The Full Court noted that the primary judge had stated, referring to SZUXN and Muggeridge, that the impugned findings were not critical or central to the Minister’s conclusion. The Full Court considered the position by reference to this approach, without needing to determine whether the approach in question constituted a different approach than that taken in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 (at [54], emphasis added):

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.

104 Albeit in obiter dicta, the Full Court applied the approach approved by the Full Court in Muggeridge, which stipulates that, where the relevant illogical reasoning is “immaterial, or not critical to, the ultimate conclusion or end result”, it will not be jurisdictional.

105 The same approach was approved by the Full Court in XRZG, albeit (again) in obiter dicta. In XRZG, the Tribunal affirmed a delegate’s decision not to revoke the cancellation of the appellant’s visa. The Tribunal considered the appellant’s ability to abstain from drug use once out of detention, and in the community. The Tribunal relevantly stated that it did not consider that drugs were as readily available in detention as they were in the community. The Full Court considered that the Tribunal’s observation about the relative availability of drugs in detention and in the community was not a finding for which any specific evidence or other material was required (at [56]). In light of that conclusion, the Full Court did not need to consider an argument advanced that the “no evidence” ground of judicial review is confined to jurisdictional facts.

106 The Full Court noted that the ground of appeal alleged jurisdictional error on the basis of legal unreasonableness (in that case, on the basis that the Tribunal’s finding was legally unreasonable because it was “without a probative basis”) and went on to address circumstances involving an absence of evidence or a lack of logical grounds as follows (at [64], emphasis added):

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 (2023) 298 FCR 277 at [54] (Markovic, Meagher and Kennett JJ).

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.

108 It is to be noted that the Full Court in XRZG considered LPDT — at least to some extent — and did not suggest that the threshold for a jurisdictional error that was established by the body of authority to which it had just referred (including Masi-Haini) was qualified by LPDT and the threshold for materiality explained in that case.

109 Having regard to the foregoing, I proceed on the basis that, in order to constitute a jurisdictional error, the Applicant needs to show that the illogicality in the Tribunal’s reasoning was in respect of a matter that was central to the ultimate decision, whether that is put in terms of being “critical” or “not immaterial”. If the illogicality meets that description, I consider — consistently with XRZG at [65] — that it would satisfy the materiality test set out in LPDT if in fact materiality would need to be considered separately, rather than being an example of errors of the kind referred to by the plurality in LPDT at [6] (errors that are jurisdictional regardless of the effect that the error might, or might not, have had on the decision that was made, or where the potential for an effect is inherent in the nature of the error).

110 In reasoning to its ultimate conclusion in the present case, the Tribunal worked through the primary considerations and the other considerations set out in Direction 110. It is to be noted that the Applicant did not advance a case that the relevant factual findings by the Tribunal — viz, that the Applicant is at moderate risk of reoffending and at higher risk of doing so if he resumes drinking heavily — was not a finding that was open on the evidence. Likewise, it was not contended that it was not open, on the evidence, to the Tribunal to remain “concerned” that the Applicant “has the potential to resume heavy drinking again” (T [105]).

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.

112 Accordingly, Ground 2 has not been made out.

113 For completeness, I note that, while the Minister put his case, in oral submissions, on the basis that a “higher threshold than mere materiality” applies, it is not necessary to consider whether this submission is correct. As I have set out above, analysis of the matter by reference to the existing body of authority concerning instances of illogicality does not require that any view be taken on this point.

Ground 3

114 By Ground 3, the Applicant argued that the Tribunal erred in finding (at T [138]) that “any third country [to which the Applicant might be removed] would have to be assessed as ‘safe’ in order for the Applicant to be removed”.

Tribunal’s reasoning

115 In considering the legal consequences for the Applicant of a decision not to revoke the cancellation of the Applicant’s visa, the Tribunal noted that:

(1) The Applicant cannot be removed to Zimbabwe because a protection finding was made for him with respect to Zimbabwe under s 197C of the Act (by virtue of the 15 May 2024 decision of the Tribunal, discussed at paragraph 3 above).

(2) The Applicant held a BVR, pursuant to which he had a right to reside in Australia.

(3) Pursuant to s 76AAA of the Act, a person’s BVR will cease if that person has permission to enter and reside in a foreign country and that country is a party to a third country reception arrangement with Australia (provided various other requirements are met — including, relevantly, the person not being subject to a protection finding in relation to that country). The Tribunal summarised the effect of s 76AAA as follows (T [135]):

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.

(4) The Applicant had expressed concern that he would be removed to a country such as Papua New Guinea where he knew no one and would have no support, or that he would be removed from a foreign country to Zimbabwe, notwithstanding the Tribunal’s 15 May 2024 protection finding.

(5) There was no evidence before the Tribunal as to what (if any) arrangements had been made with third party countries, or whether the Minister would seek permission for the Applicant to enter and reside in any other country.

116 The Tribunal ultimately concluded (at T [138], emphasis added):

Nevertheless, it is clear that it is the intention of the Australian government to enter into safe third country arrangements and to remove non-citizens with criminal convictions who fail the character test, including BVR holders, and the Applicant falls within this cohort. While it cannot be said that it is clear when or if the Applicant will be removed from Australia to a safe third country, it is now possible that he may be. The Applicant expressed considerable concern about this possibility, and the Tribunal accepts that if he were to be removed to a safe third country, he would have no family support (as his family is either in Australia, Zimbabwe, South Africa or the United Kingdom, none of which are likely to enter into safe third country arrangements with Australia), and that … he may not speak the language or have any obvious means to support himself (particularly since he has had a limited education and work history in Zimbabwe and Australia). It is also not known whether the Applicant, 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 to be unlikely as any third country would have to be assessed as ‘safe’ in order for the Applicant to be removed.

Applicant’s submissions

117 The Applicant submitted that the Tribunal’s finding that “any third country [to which the Applicant might be removed] would have to be assessed as ‘safe’ in order for the Applicant to be removed” was based on an incorrect understanding of the Act. He contended that this misunderstanding of the Act suffused the Tribunal’s reasoning, as exemplified by the inaccurate attribution to the Applicant of submissions expressing his concern about being removed to a “safe” third country.

118 The Applicant argued that there is nothing in the Act that would limit the Applicant’s removal to “safe” countries. The Applicant’s reasoning was as follows:

(1) Section 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.

(2) The Applicant cannot be removed to Zimbabwe pursuant to s 198(2B) of the Act because of the protection finding made for him in relation to Zimbabwe under s 197C of the Act, as discussed at paragraphs 3 and 115(1) above.

(3) However, whilst s 197C(3) of the Act provides that s 198 does not require or authorise removal of the Applicant to Zimbabwe, it does not prevent removal to another country.

(4) The Applicant is currently not subject to removal to other countries under s 198(2B) because he is the holder of a BVR. However, the Applicant’s BVR may cease if the conditions in s 76AAA of the Act are 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.

…

(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.

(5) Section 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 s 198AHB(5) to include “an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding”.

(6) 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.

119 The Applicant argued that the Tribunal acted on an incorrect understanding of the Act and thereby committed a jurisdictional error: citing AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; (2024) 304 FCR 586 at [34] and [43] (Murphy, Stewart and McEvoy JJ). This error was said to be material on the basis that, if the Tribunal had properly understood the Act, the Tribunal would have assessed the risk of the Applicant being removed to a foreign country that is not “safe” as being greater than it did. The Applicant suggested that this “could only have been a factor weighing in favour of revoking the cancellation of the applicant’s visa” and that there was “a realistic possibility that, if the Tribunal had properly taken that factor in account, its decision could have been different”.

Minister’s submissions

120 In relation to Ground 3, the Minister firstly provided the legislative background to ss 76AAA and 198AHB of the Act. Specifically, the Minister outlined that both provisions were introduced by the Migration Amendment Act 2024 (Cth) (Migration Amendment Act), which was principally aimed at strengthening the legislative framework relating to the removal from Australia of certain non-citizens who are on a removal pathway. Alongside the Migration Amendment Act, the Migration Amendment (Removal and Other Measures) Act 2024 (Cth) (the Removal and Other Measures Act) was also introduced to provide mechanisms to compel non-citizens to cooperate with their lawful removal from Australia.

121 Against this backdrop, and while accepting that the Act does not expressly prohibit the removal of the Applicant to a third country that is not safe, the Minister submitted that both the Explanatory Memorandum to the Migration Amendment (Removal and Other Measures) Bill 2024 (Cth) (Removal and Other Measures EM) and the Revised Explanatory Memorandum to the Migration Amendment Bill 2024 (Cth) (Revised EM) expressed a policy that Australia would not send persons in the Applicant’s position to a third country that was not safe. It was common ground that the Removal and Other Measures EM and the original Explanatory Memorandum to the Migration Amendment Bill 2024 (Cth) were before the Tribunal, but the Revised EM was not.

122 The Minister noted that, given the Migration Amendment Act entered into force after the Tribunal hearing, and ss 76AAA and 198AHB relevantly concerned the facilitation of “third country reception arrangements”, the Tribunal invited post-hearing comment on the application of the new provisions.

123 The Minister observed that, in its letter inviting further submissions, the Tribunal summarised the various amendments to the Act by quoting “verbatim” from page 2 of the Removal and Other Measures EM.

124 As a result, the Minister argued that the Tribunal would have also read the following sections from the same memorandum:

(1) At page 21 (emphasis in original):

[a] person in respect of whom a protection finding has been made cannot be required to interact with the country to which that finding relates, nor to take any actions to facilitate their removal to that country. Such a person may however be directed to comply with a direction that would help facilitate their removal to a third country, if for example their removal to a third country was a viable option and would be compliant with international human rights and non-refoulement obligations.

(2) At pages 29–30 (emphasis in original):

Australia remains committed to its international obligations concerning non-refoulement.

…

Operational guidance will also ensure that, where a person makes credible new protection claims in relation to a country they have previously been assessed against and had no protection finding made, or in relation to another country to which they may be removed, a removal pathway direction is not issued while those claims are being assessed. The measure relating to the designation of removal concern countries does not engage or limit Australia’s non-refoulement obligations as it does not affect persons who are in Australia or their ability to make a protection visa application and to have it assessed.

125 Accordingly, the Minister argued, the Tribunal had clear evidence before it of the Executive’s expressed policy to comply with Australia’s international non-refoulement obligations, despite there not being an express provision in the Act prohibiting the removal of the Applicant to a third country that was not safe.

126 The Minister submitted that this same Executive policy is consistent with the Revised EM, which states, at pages 31–32:

For a person subject to these measures who does not have a ‘protection finding’ but makes protection claims, there would be opportunity to have those claims considered through a protection visa process or through consideration of ministerial intervention pathways where relevant. Similarly, where a person makes new protection claims in relation to a country they have previously been assessed against and had no protection finding made, or in relation to another country to which they may be removed, including a country with which Australia has a reception arrangement, or where there may be chain refoulement concerns with respect to the third country, there is scope to identify such cases and refer them for ministerial intervention consideration prior to removal actually taking place.

The amendments also authorise the Commonwealth to take actions and expend money on third country reception arrangements. The amendments do not provide parameters for potential third country reception arrangements, however the Government would ensure that any such arrangements are consistent with Australia’s non-refoulement obligations, including that there are mechanisms to guard against chain refoulement by the third country.

Therefore these amendments include some express safeguards with respect to non-refoulement obligations and it is intended that other safeguards will be 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.

127 Accordingly, the Minister criticised the Applicant’s argument for depending on an “unstated hypothesis” that, contrary to Australia’s international non-refoulement obligations and the Executive’s stated policy, the Minister would exercise his discretion to remove the Applicant pursuant to s 199C of the Act to an unsafe third country and officers of the Commonwealth would arrange such removal.

128 The Minister submitted that the Tribunal was correct to conclude, based on the evidence before it, that it was “unlikely” that the Applicant would be refouled to a third country where he would be at risk of harm and discrimination as a result of his bisexuality.

129 The Minister also referred to provisions of the Act that suspend removal processes where certain applications are pending, eg where the Minister is considering exercising his discretion to “lift the bar” to permit a further protection application to be made. These provisions were said also to expose that the Applicant was not at imminent risk of being removed to an unsafe third country, because they provide a mechanism for the suspension of any such removal.

Consideration

130 The relevant part of the Tribunal’s analysis needs to be considered in the context of Direction 110, applied by the Tribunal. Direction 110 sets out, as has its predecessors, the “primary considerations” and “other considerations” in making decisions under s 501 or s 501CA of the Act. Ground 3 concerns a part of the Tribunal’s analysis that was directed to one of the “other considerations” specified by cl 9 of Direction 110, namely the “legal consequences of the decision” on the Applicant as the affected non-citizen.

131 The Tribunal recognised that the Applicant had two concerns about being removed to a third country (noting that, as a consequence of his protection finding, he could not be removed to Zimbabwe). First, he was concerned that he would be removed to a country where he did not speak the language and had no supports. Second, he was concerned that he may be removed to a third country that was itself not safe for the LGBTI community, and where he may be discriminated against on the basis that he is bisexual, or would be removed from a third country to Zimbabwe. It is the second concern that is relevant to Ground 3.

132 I do not consider that the Applicant has established that the Tribunal operated under a misconception that the legislative regime restricted the Executive so that the Applicant, as a matter of the operation of the legislation, could only be removed to a “safe” third country. Rather, and as the Tribunal’s reasons made clear, it was addressing the practical position insofar as the prospect of the Applicant being removed to an unsafe third country is concerned. This is illustrated by the opening words to T [138], where the Tribunal stated that “it is clear that it is the intention of the Australian government to enter into safe third country arrangements” (emphasis added). It is also clear from the last sentence of T [138] where the Tribunal said it is “not known whether the Applicant, who is bisexual, might be removed to a country where being a member of the LGBTI community could expose him to discrimination or harm…”.

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 Applicant 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 Applicant 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.

134 There was evidence before the Tribunal that the factual position was that the administrative framework and policies under which the power to cancel a person’s BVR, where the person has permission from a third country with which Australia has entered into a third country reception arrangement, would be exercised did entail having regard to whether the third country was safe. As the Minister’s submissions elaborated, it is apparent that the Tribunal had before it, and was aware of, the Removal and Other Measures EM which outlined, among other things, that the removal process was in respect of removal to “a safe third country” (p 2), removal to a country where removal to that country would be “compliant with international human rights and non-refoulement obligations” (p 21). Further, the Removal and Other Measures EM referred to operational guidance being issued that would, among other things, establish a process whereby a person would not be removed while credible protection claims in respect of the proposed third country were being assessed (pp 29–30). Having regard to these matters, nothing turns on the Tribunal not having before it the Revised EM, to which the Minister’s submissions also referred.

135 For the foregoing reasons, Ground 3 has not been made out.

Conclusion

136 The application will be dismissed with costs.

Associate:

Dated:    20 August 2025