Federal Court of Australia

XYJY v Minister for Immigration and Citizenship [2025] FCA 1572

ORDERS

THE COURT ORDERS THAT:

1.    The further amended originating application be dismissed.

2.    The applicant is to pay the costs of the first respondent, as taxed or agreed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    The applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 4 March 2025 affirming a decision of a delegate of the first respondent (Minister) to refuse to revoke the cancellation of the applicant’s Class XA Subclass 866 Protection visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act).

B.    Factual Background

2    The applicant was born in India. He is 40 years old.

3    In 2007, the applicant arrived in Australia.

4    On 10 February 2012, the applicant was granted a Class XA Subclass 866 Protection visa.

5    The applicant has a lengthy criminal history.

6    On 19 March 2024, the applicant was convicted of several offences, resulting in a sentence of 24 months imprisonment, with a non-parole period of nine months.

7    On 10 April 2024, the applicant’s visa was cancelled under s 501(3A) of the Act (Cancellation Decision) on the basis that he failed to pass the character test due to a “substantial criminal record”, as defined under s 501(7)(c) of the Act, and he was taken into immigration detention. There was no dispute before the Tribunal that the applicant did not pass the character test.

8    On 2 May 2024 and 19 June 2024, the applicant made representations to the Minister under s 501CA(4)(a) of the Act seeking revocation of the Cancellation Decision.

9    On 10 December 2024, the Minister’s delegate (Delegate) decided not to revoke the cancellation decision pursuant to s 501CA(4) of the Act (Delegate’s Decision). On the same date, the applicant was granted a Class WR Bridging R (Removal Pending) (subclass 070) visa (BVR) and was released from immigration detention.

10    On 16 December 2024, the applicant applied for a review of the Delegate’s Decision in the Tribunal.

11    On 24 and 25 February 2025, the application for the review of the Delegate’s Decision was heard before the Tribunal.

12    On 4 March 2025, the Tribunal affirmed the Delegate’s Decision (Tribunal’s Decision) and delivered reasons for its decision (Statement of Reasons or SR).

C.    Legislative framework

13    Section 501(3A) of the Act relevantly provides:

(3A) 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

…

(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.

14    Section 501(6)-(7) of the Act relevantly provides:

(6) For the purposes of this section, a person does not pass the character test if:

(a)     the person has a substantial criminal record (as defined by subsection (7)); or

…

(7) For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or …

15    Section 501CA(4) of the Act provides:

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) 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.

16    In exercising the power under s 501CA(4)(b)(ii) of the Act, a delegate of the Minister, and the Tribunal, are required to comply with directions made by the Minister under s 499 of the Act: FHHM v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 19 at [6]-[7] (O’Callaghan and Colvin JJ, with Derrington J agreeing).

17    Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction) was the relevant direction in force at the time of the Delegate’s Decision and the Tribunal’s Decision.

18    Paragraph 8 of the Direction sets out the following five primary considerations that the decision maker is required to take into account:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3)    the strength, nature and duration of ties to Australia;

(4)    the best interests of minor children in Australia; and

(5)    expectations of the Australian community.

19    Paragraph 8.1 of the Direction provides the following guidance on how the decision maker should approach consideration of the protection of the Australian community:

(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2) Decision-makers should also give consideration to:

a)    the nature and seriousness of the non-citizen’s conduct to date; and

b)    the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

20    Paragraph 8.1.1 of the Direction relevantly provides that, in considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, the decision maker must have regard to the following:

a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

i. violent and/or sexual crimes;

ii. crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;

iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

…

    c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or … above, the sentence imposed by the courts for a crime or crimes;

…

    e) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

    f) the cumulative effect of repeated offending;

    …

21    Paragraph 9 of Direction sets out three other considerations, which must also be taken into account:

a)    legal consequences of the decision;

b)    extent of impediments if removed;

c)    impact on Australian business interests.

22    Paragraph 6 of the Direction provides that a decision-maker must take into account the considerations identified in paras 8 and 9, where relevant to the decision.

23    Paragraph 7(2) of the Direction provides that the primary consideration at 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations, and otherwise the primary considerations should generally be given greater weight than the other considerations.

D.    GROUND 1

D.1    Overview

24    The applicant contends in Ground 1 that the Tribunal erred in applying para 8.1 of the Direction because the Tribunal misread, misunderstood, and mischaracterised the applicant’s criminal history and therefore proceeded on an incorrect basis.

D.2    The applicant’s contentions

25    The applicant submits, by reference to a table listing the applicant’s sentences at [19] of the Statement of Reasons, produced in the context of the Tribunal’s consideration of whether the applicant passed the character test, that the genesis of the error alleged by Ground 1 is the Tribunal’s failure to acknowledge or consider that a sentence of eight months imprisonment imposed on 17 October 2017 (the subject sentence was in fact imposed on 11 October 2017) and a sentence of six months imprisonment imposed on 26 August 2011 (together, Sentences) were wholly suspended. The applicant contends that due to this failure, the Tribunal’s Decision was made on the basis that the applicant was sentenced to the most severe punishment available on two additional occasions, while in fact that was not the case, as a suspended sentence is less serious than a sentence of full-time imprisonment.

26    The applicant submits that this error is jurisdictional and is akin to the error identified by the Full Court in the Minister’s decision in Lu v Minister for Immigration and Multicultural Affairs (2004) 141 FCR 346; [2004] FCAFC 340, where the Minister misunderstood the sentence imposed on Mr Lu due to an error in the document before the Minister, which recorded that Mr Lu had received a sentence of nine months’ imprisonment for drug offences, but he had actually received several fines.

D.3    Consideration

27    I do not accept that the lack of any acknowledgement by the Tribunal that the Sentences were suspended amounted to a jurisdictional error.

28    As a threshold matter, I am satisfied that the manner in which a sentence is to be served is relevant to an assessment of the nature and seriousness of a non-citizen’s criminal offending or other conduct, but it is not relevant to the assessment of whether a person has passed a character test under s 501(6) of the Act.

29    In Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113; [2010] FCAFC 33, the Full Court was satisfied that the applicant’s suspended sentences amounted to a “substantial criminal record” within the meaning of s 501(7)(c) of the Act. Justice Rares (with whom Moore J agreed at [1]) relevantly observed at [6]-[7]:

The essential feature of a suspended sentence of imprisonment is that it is necessarily a sentence to imprisonment for the term selected by the sentencing court as the appropriate punishment. The first stage of the two step process of sentencing an offender to a term of imprisonment is determined without regard to the fact that, at the second stage, the sentencer is to suspend it: Dinsdale 202 CLR 321 at [79]; Zamagias [2002] NSWCCA 17 at [27], [31].

The structure of s 501 recognises that there are varying degrees of punishment sufficiently serious to amount to a substantial criminal record for the purposes of s 501(6)(a) and (7). The definitions of “imprisonment” and “sentence” in s 501(12) are in the inclusive form; that is, each definition elucidates but does not limit the ordinary and natural meaning of the word. A sentence of imprisonment for not less than 12 months that is wholly suspended is a very serious penalty. The focus of s 501(7)(c) and (d) is on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be, or subsequently may be, served.

30    Contrary to the submissions of the Minister, I do not accept that the observation made by Rares J (with whom Moore J agreed) in Brown that the focus of s 501(7)(c) and s 501(7)(d) of the Act is on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be, or subsequently may be, served is equally applicable to the reference to the “sentence imposed” in [8.1.1](c) of the Direction.

31    Section 501(7) of the Act provides an exhaustive definition of what constitutes a “substantial criminal record” for the purpose of s 501(6)(a). Relevantly, for present purposes, both s 501(7)(c) and s 501(7)(d) are directed at the “term of imprisonment” for which a person has been sentenced, which, in both cases, is “12 months or more”.

32    In contrast, the obligation imposed on a decision-maker in [8.1.1] of the Direction is to consider the nature and seriousness of a non-citizen’s criminal offending and other conduct. Paragraph 8.1.1(c) of the Direction requires the Court to have regard to “the sentence imposed by the courts for a crime or crimes”, other than with respect to crimes or conduct the subject of sub-paragraphs (a)(ii), (a)(iii) and (b)(i), where the Court must have regard to the crimes or conduct “regardless of the sentence imposed”, and, in the case of (a)(iii) and (b)(I), regardless of whether “there is a conviction for an offence”. The Direction is not limited to the “term” of the sentence of imprisonment. It is a broader enquiry directed as the “sentence” that is imposed. Necessarily, consideration of the sentence imposed must include the manner in which the sentence is to be served.

33    A suspended sentence remains a sentence of imprisonment, but it is significantly more lenient than a sentence that is not suspended. As the New South Wales Court of Appeal relevantly observed in R v Bredal [2024] NSWCCA 75, in the context of s 20(1)(b) of the Crimes Act 1914 (Cth) enabling the court to sentence a person convicted of a federal offence to imprisonment but to order that the person be released, at [64] (Dhanji J, with whom Harrison CJ at CL and Button J agreed at [1] and [5], respectively):

… [T]he decision as to whether the circumstances are sufficiently exceptional for the purposes of s 20(1)(b)(iii) of the Crimes Act so as to warrant the complete suspension of the sentence is not to be thought of as a decision between a sentence of imprisonment and no punishment at all. The option of no (curial) punishment at all has been provided by the legislature in s 19B of the Crimes Act. Section 20(1)(b) has been maintained by the legislature as a sentencing option in an appropriate case. As Bray CJ said in Elliot v Harris (No 2) [1976] 13 SASR 516 at 527, in an observation endorsed in, at least, R v Nahlous [2013] NSWCCA 90; 228 A Crim R 503 at [86]; R v Zamagias [2002] NSWCCA 17 at [31] and R v Foster (2001) 33 MVR 565; [2001] NSWCCA 215 at [36], "[s]o far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such as a sentence involved on the defendant’s record and his future…". Of course, a suspended sentence is significantly more lenient than one that is not suspended. But it involves real punishment nonetheless.

34    The critical issues in the present case are (a) whether the Tribunal failed to have regard to the fact that the Sentences were wholly suspended and, therefore, proceeded on an incorrect understanding of the applicant’s criminal history, and (b) was any failure to have regard to the suspension of the Sentences material.

35    In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28, the Full Court (Allsop CJ, Griffiths and Wigney JJ) rejected the suggestion that the Minister has failed to have regard to the fact that Mr Eden’s sentence of imprisonment was fully suspended when assessing the objective seriousness of his conduct, rendering the Minister’s decision to cancel Mr Eden’s visa legally unreasonable. At [73], the Full Court stated:

As for the apparent suggestion that, by reason of the content of the issues paper or otherwise, the Minister failed to have regard to, or failed to give adequate weight to, the fact that Mr Eden’s sentence of imprisonment was fully suspended, it is clear that the Minister had the sentencing judge’s remarks on sentence before her. The issues paper also clearly indicated that Mr Eden’s sentence was fully suspended. A sentence of imprisonment which is fully suspended is nonetheless a sentence of imprisonment and is regarded as a “very serious form of punishment”: Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113at 115[4] (Rares J, with whom Moore J agreed). It is “treated as the penultimate punishment in the hierarchy of sentencing options provided, just slightly lower in severity than the imposition of imprisonment to be immediately served”: Dinsdale v R (2000) 202 CLR 321 at [77]; see also R v Zamagias [2002] NSWCCA 17 at [22]–[31] (Howie J, with whom Hodgson JA and Levine J agreed). Contrary to the apparent findings of the primary judge, it was open to the Minister to conclude, as she did (at Reasons [15], extracted earlier) that the sentence imposed on Mr Eden was “indicative of the seriousness of his offending”. The fact that the sentence was wholly suspended did not mean that the offence was not very serious.

36    Relatedly, the Full Court in Eden rejected the submission that, when assessing the seriousness of Mr Eden’s offending, the Minister was obliged to, but did not, consider the fact that Mr Eden had mistakenly believed, albeit on objectively unreasonable grounds, that the victim consented to his sexual advances. Having noted that this fact was clearly spelt out in various documents which were before the Minister, including the sentencing judge’s remarks and the issues paper, their Honours relevantly observed at [74]:

…Whilst the Reasons do not expressly refer to this aspect of Mr Eden’s behaviour, it does not follow that the Minister necessarily ignored it. It is equally consistent with the Minister not regarding it as sufficiently material to include in the brief recitation of Mr Eden’s offending conduct (at Reasons [11]). Whilst the fact that Mr Eden was acting under a mistake was undoubtedly relevant to a proper consideration of the seriousness of his offending, it did not compel a finding that his offending was not very serious, as Mr Eden effectively contended…

37    As in Eden, the Tribunal in the present case had before it the national criminal history check dated 5 April 2024, which recorded that the Sentences have been suspended. Consistently with the Full Court’s findings in Eden at [74], the fact that the Tribunal did not expressly refer to the fact that the Sentences were suspended in the Statement of Reasons (a) does not mean that it failed to have regard to that fact, and (b) is consistent with the Tribunal not considering that fact to be material.

38    An error is material for the purposes of jurisdictional error if there is realistic possibility that the decision could, not would, “realistically” have been different if the error had not been made: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2004) 280 CLR 321; [2024] HCA 12 at [14].

39    There is a further significant barrier to a finding that any failure to acknowledge expressly that the Sentences were suspended could be material to the Tribunal’s determination. The only specific reference that the Tribunal made to the Sentences was at SR [19] in determining whether the applicant passed the character test. All of the offences for which the applicant had been convicted were listed at SR [19], as recorded in a Criminal Intelligence Commission Check Results Report. Consistently with the reasoning in Brown, it was only the terms of imprisonment that was listed – not the basis on which the Sentences were to be served.

40    The Tribunal considered the nature and seriousness of the applicant’s offences and conduct to date pursuant to [8.1.1] of the Direction at SR [27]-[39]. That consideration was directed at the serious offences and conduct of the applicant listed at SR [19]. The only potential reference to the conduct the subject of the Sentences was the following relatively inconsequential statement at SR [36], noting that the “2011 offending” may well be a reference to other conduct of the applicant for which he was sentenced by the Wollongong Local Court on 29 June 2011:

The police report in relation to the 2011 offending states that the Applicant was questioned by the police and gave his name and address, which were different to the address on his bail undertaking. There are also before the Tribunal copies of the DVO.

41    The absence of any, or any material, reference to the Sentences by the Tribunal in its consideration of the nature and seriousness of the applicant’s offending and conduct is fatal to any suggestion that the failure to state that the Sentences were suspended was material. The suspension was not relevant in the context of the character test, and the Sentences formed no part of the dispositive reasoning of the Tribunal in its assessment of the nature and seriousness of the applicant’s offending and conduct.

42    The applicant’s reliance on the statements by Sackville J in Lu at [55] is misplaced. His Honour observed at [55]:

It is within the scope and purpose of s 501A(2) of the Migration Act… that the Minister should have regard to the offences for which the person was convicted and the sentences imposed in respect of those offences. As Wilcox J observed in Minister v Huynh, at 136-137 [43], these are essential matters in assessing the degree of criminality in the offences and their significance in determining whether it is desirable to cancel the person’s visa and to remove him or her from Australia. In short, they indicate the seriousness of the person’s conduct and the threat he or she poses to the Australian community. It must be remembered that s 501A(2) confers a power on the Minister not merely to cancel a visa, but to set aside a decision of the AAT not to cancel the visa. It is unlikely that Parliament contemplated that the Minister could exercise a power having such drastic consequences for a permanent Australian resident on the basis of incorrect information as to the offences committed by the visa holder and the sentences imposed for those offences. It follows that if the Minister fails to take into account a visa holder’s correct criminal record because the Department provides incorrect information, ordinarily the Minister will have failed to act in accordance with the requirements of s 501A(2) and therefore will have acted in excess of jurisdiction.

43    Unlike in the present case, the Minister in Lu was specifically provided with an incorrect statement of the applicant’s criminal record. The issues paper presented to the Minister erroneously recorded that the applicant had been sentenced in 1993 and 1997 to nine months’ imprisonment for drug offences to be “served concurrently with his prison term” (at [57]). The drug offences were not referred to in the discussion in the issues paper of the seriousness and nature of the conduct and general deterrence but were referred to in the discussion of the likelihood that the conduct may be repeated (at [68]). In that context, it was stated at [22] of the issues paper (at [25]):

Whilst incarcerated Mr LU was convicted in 1993 for the offences of Self Administer Drug, Possess Implements To Administer Drugs and Possess Prohibited Drug. He was also convicted in 1997 for the offences of Possess Prohibited Drug, Possess Implements Utensils [sic] To Administer Prohibited Drug and Self Administer Prohibited Drug. The resultant sentences were to be served cumulatively with his main sentence.

44    As Sackville J observed at [57] and [58], the reference to the “resultant sentences” being served “cumulatively” was inconsistent with the earlier statement in the issues paper that the sentences for the drug offences were to be served “concurrently”. Moreover, the information as to the drug offences was inaccurate because the appellant only received fines in an aggregate amount of $1,100 for the drug offences committed in 1993 and was sentenced to three terms of imprisonment, each of one month, to be served concurrently at the expiration of the term of imprisonment that the appellant was then serving.

45    It was in that context, that Sackville J concluded at [61]:

There was no evidence that the erroneous information provided to the Minister was corrected. Nor was there evidence from which it could be concluded that the Minister paid no attention to the appellant’s 1993 and 1997 convictions. In these circumstances I conclude that the Minister committed a jurisdictional error by failing give the requisite consideration to a matter the statute required him to take into account, that is, an accurate statement of the appellant’s criminal record.

46    A similar conclusion was reached by Black CJ at [28] – [32].

47    I am otherwise satisfied, consistently with the observations of the Full Court in Eden at [73], that it was open, on the material before it, for the Tribunal to conclude, as it did, that (a) the applicant’s offending was very serious, (b) the applicant’s sentences, which mainly involved fines in earlier years, and custodial sentences more recently, reflected the escalation in the seriousness of the applicant’s offending conduct, and (c) the protection of the Australian community weighed heavily against the revocation of the Delegate’s Decision, having regard to the nature of the applicant’s offending, including the escalation in its seriousness. The fact that the Sentences were suspended does not mean that the applicant’s offending conduct, resulting in the imposition of the custodial sentences, was not very serious; nor does it change the fact that the escalation in the imposed sentences from fines to custodial sentences reflected the escalation in the seriousness of the applicant’s offending conduct.

48    For these reasons, I am satisfied that there is no jurisdictional error in the Tribunal’s omission of any specific reference to the fact that the Sentences were suspended in the Statement of Reasons.

49    Ground 1 has not been established.

E.    GROUND 2

E.1    Overview

50    The applicant contends in Ground 2 that the Tribunal’s Decision was affected by jurisdictional error because of its rejection of his contentions that (a) he would be unable to support himself on a BVR because he would not be eligible for a disability support pension (DSP), and (b) he would not be able to secure stable accommodation without social housing on the basis that he had “employment options” and “intended to find a job”, was illogical or unreasonable or irrational (Support and Accommodation Contentions). The applicant therefore contends that the Tribunal’s Decision is affected by jurisdictional error due to legally unreasonable reasoning and findings.

E.2    Legal principles

51    The principles governing the ground of review on the basis of illogicality or legal unreasonableness are well established.

52    In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, the Full Court summarised the position with respect to the legal unreasonableness ground of review as follows at [33]-[35] (Allsop CJ, Besanko and O’Callaghan JJ):

The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made…

The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR 611 at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [52] and [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

53    In Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCASJ 42; (2024) 99 ALJR 387 at [27], Steward J outlined the relevant principles pertaining to legal unreasonableness in the following terms:

…The contention that a finding is unreasonable or irrational is not made out by disagreeing with the merits of a finding; even strong disagreement is insufficient. It is also not made out by mistaken reasoning. It requires the presence of irrational or illogical reasoning or processes or outcomes. Irrational or illogical reasoning is not poor or very poor reasoning; it is reasoning which does not – in any way – make sense; it is reasoning which completely offends logical thinking. The same applies to unreasonable or irrational outcomes. Such reasoning or outcomes arise on only the rarest of occasions.

E.3    Reasoning of the Tribunal

54    The Tribunal rejected the Support and Accommodation Contentions. It provided the following reasons for rejecting those contentions at SR [63], [93] and [94]:

The Tribunal does not accept the Applicant’s claim that he will not be able to support himself without the DSP. His evidence to the Tribunal is that he intends to find employment in the construction field, and has met with an employment agent. He told the Tribunal he was able to work full-time in the past. The Applicant seems to have a genuine desire to engage in employment and believes he will be able to, and has taken steps towards that purpose. It has not been established, in the Tribunal’s view, that he will face homeless and ‘severe deprivation’ unless he is in receipt of DSP.

…

The Tribunal also accepts that the Applicant would be ineligible for social housing if not a holder of a permanent visa. The Applicant’s evidence to the Tribunal is that he was previously living in public housing prior to his imprisonment and he made the application for public housing more recently but was told he was not eligible due to his visa. Even if it is assumed that the Applicant would be entitled to social housing as a holder of a permanent visa and that there are no waiting periods, the Tribunal does not accept that without social housing the Applicant would not have stable accommodation. This is because the Applicant’s evidence is that he has employment options and intends to engage in employment. There is no apparent reason why he could not arrange his own stable accommodation through private rental, as he told the Tribunal he intends to do.

The Tribunal does not accept the Applicant’s apparent premise that the protective factors of stable income and housing would only be available to him as a permanent visa holder but not if he remains in the community on any other visa or as an unlawful non-citizen. While it is true that the Applicant might have access to DSP and social housing as a permanent visa holder but not as a BVR holder, that does not mean that the Applicant could not arrange stable accommodation and income through employment irrespective of his visa status. Indeed, in his statement prepared in January 2025 the Applicant refers to his intention to find stable employment in the future and his intention to study in order to improve his employability and the Applicant told the Tribunal that he has already met with an employment agent and wants to work in the construction field. The Applicant also told the Tribunal that if he is employed, there was no reason he could not contribute part of his income towards mental health treatment. The Applicant has not satisfied the Tribunal that protective factors would not be available to him if he has no access to NDIS, DSP and social housing because it is open to the Applicant to seek supports from other sources such as, for example, through community mental health programs, private housing and income through employment.

E.4    The applicant’s contentions

55    The applicant submits that the Tribunal’s rejection of the Support and Accommodation Contentions was illogical, unreasonable or irrational because of the absence of any evidence that the applicant (a) was employed, (b) had been offered employment, or (c) had been employed in any capacity for the four years prior to the Tribunal’s hearing.

56    The applicant submits that the Tribunal rejected his contentions that he (a) faced homelessness in the near future if his visa cancellation was not revoked because he would be ineligible for social housing, and (b) would be ineligible for financial support, such as the disability support pension, that might enable him to obtain private housing, on the basis that he had “employment options”.

57    The applicant submits, however, that when the evidence before the Tribunal is considered as a whole, it was not logically possible to conclude that he would “likely become employed in the future”. The applicant submits that the material before the Tribunal did not rise higher than the evidence of the fact that (a) the applicant had a reduced capacity for work, (b) prior to 2017, he had worked in various blue-collar jobs, (c) he had a more recent, lengthy period of unemployment, and (d) he was looking for work and had previously worked as a car washer, a kitchen hand and a house painter, in the years after he had arrived in Australia.

58    The applicant submits that there was no evidence that the applicant had been offered employment, nor that he had been offered any employment interviews.

E.5    Consideration

59    I am not satisfied that any explicit or implicit finding by the Tribunal, at SR [63], [93] and [94], to the effect that the applicant had “employment options” and, therefore, had not established that he would not be able to support himself without the DSP, lacked any rational or evidential foundation. The finding was based on the evidence before the Tribunal that the applicant had confirmed to the Tribunal that (a) he intended to find stable employment in the future and undertake study to improve his employability, (b) he had met with an employment agent and wanted to work in the construction field, (c) he had been able to work on a full-time basis in the past, and (d) there was no reason why he could not contribute part of his income towards mental health treatment if he gained employment.

60    The reasoning process of the Tribunal was exposed, it was not incoherent, and it had an evident rational or logical foundation. An intention to find stable employment, taking steps to progress that intention and a previous ability to work full-time are all relevant and logical factors supporting a conclusion that a person could be expected to generate employment income in the future and support themselves, including finding stable accommodation, notwithstanding the loss of any assumed entitlement to public housing, as the holder of a permanent visa, with no waiting periods. It was a conclusion that was reasonably open to a decision-maker in circumstances where there was no evidence that (a) the applicant had been, or would have been, approved for social housing, without any waiting period, as the holder of a permanent visa, nor (b) that the applicant would have access to the National Disability Insurance Scheme, as a permanent resident, and it was open to the applicant to seek support from other sources, including through community mental health programmes.

61    For these reasons, I am satisfied that the applicant has not established that the decision reached by the Tribunal was legally unreasonable. I do not accept that it so lacked a rational or logical foundation that no logical or rational decision maker could have made the same decision.

62    Ground 2 has not been established.

F.    GROUND 3

F.1    Overview

63    The applicant contends in Ground 3 that the Tribunal’s decision is affected by jurisdictional error because it failed to bring its own independent mind to bear on what would be the correct or preferable decision on the review due to the Statement of Reasons (a) copying, without attribution, portions of the Delegate’s Decision and the Tribunal’s reasons in Christopher Patrick Clark v Minister for Immigration, Citizenship and Multicultural Affairs [2024] ARTA 330 and LKQD and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 33, (b) engaging with submissions which were not advanced at the hearing without affording either party the opportunity to be heard, and (c) being inconsistent in evaluating speculative matters as to the applicant’s possible future conduct. The applicant contends that these alleged errors gave rise to a constructive failure of the Tribunal to exercise jurisdiction.

F.2    Legal principles

64    In CRI026 v The Republic of Nauru [2018] HCA 19; (2018) 355 ALR 216, the Refugee Status Review Tribunal affirmed the rejection of a Pakistani applicant’s claim to refugee protection based on an alleged fear of being harmed by the Muttahida Qaumi Movement waging a personal vendetta against him. In the “Refugee assessment” section of the statement of reasons to its decision, the tribunal referred to the applicant not facing a real possibility of persecution in Sri Lanka because of an imputed political opinion, his race or his membership of particular Tamil social groups, which had nothing to do with the applicant. In respect of this error, the High Court (Kiefel CJ, Nettle and Gageler JJ) stated at [56] – [57]:

Viewed in that context, it will be seen that the incongruous observation in paragraph 68 was truly intended to be a formal restatement of the conclusion immediately before expressed, in paragraph 67, on the basis of all of the relevant considerations essayed in paragraphs 11 to 66, and that somehow a typographical error – possibly an error in editing a form of words cut and pasted from a previous decision in another matter – resulted in references to Sri Lanka and Tamils rather than Karachi and the MQM.

It is unfortunate that such an error should have been permitted to occur. It suggests a lack of care in final proof reading of reasons for which all three members of the Tribunal were responsible – but the principal burden of which falls on the presiding member – that should not have occurred and should not be repeated. Such errors are likely to create doubts about the validity of decisions which should not arise. Nevertheless, reading the Tribunal’s reasons as a whole, it is plain beyond peradventure that in this case it was not an error in the reasoning process of the kind for which the appellant contended and should be disregarded: falsa demonstratio non nocet.

(Footnotes omitted.)

65    Further, in EUD24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1474, Logan J found that the observations of the High Court in CRI026 at [57] set out above equally applied to the numerous errors in the statement of reasons for the Minister’s decision, including references to the wrong provisions of the Act, that he had found and then relevantly stated at [22] – [23]:

It is certainly possible to envisage a class of case where errors in reasons are so egregious that this is probative of a decision which lacks a logical or rational foundation. That any such conclusion, however, would necessarily only follow from a fair reading of reasons as a whole in the way counselled by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 –2 (Brennan CJ, Toohey, McHugh and Gummow JJ), in adopting observations made by a Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, and as more recently emphasised by the High Court in BVD17 v Minister for Immigration & Border Protection (2019) 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

When one reads these reasons as a whole and adopting the principled restraint counselled by the cases just mentioned, it is tolerably clear, even “plain beyond peradventure”, that neither individually nor collectively is there a decision lacking in a logical or rational foundation…

F.3    The applicant’s contentions

66    The applicant submits that when proper regard is had to (a) the extent of the copy and pasting from other sources, particularly at SR [167], (b) the unnecessary and inexplicable references to submissions made to the Delegate that were either inconsistent with the applicant’s case at hearing or did not arise at all, as well as (c) the structural features and inconsistencies in the Statement of Reasons, the Tribunal failed to act “on a coherent and consistent understanding of the applicant’s circumstances” and failed to exclude “from its consideration remnant details gleaned from other decisions that were irrelevant” to the applicant’s claims before the Tribunal, in a manner proscribed in ALZ18 v Minister for Immigration and Citizenship [2025] FCA 1035 at [88] (Cheeseman J).

67    The applicant submits that the errors were material in the LPDT sense because (a) the Tribunal reached a conclusion in SR [167] about one of the key issues the Tribunal was required to determine, (b) the Tribunal’s consistent engagement with submissions made to the Delegate that did not arise in the hearing, without providing either party the opportunity to address them, resulted in the Tribunal effectively engaging with two separate and distinct sets of submissions, making it hard to say with certainty what the outcome would have been had that not occurred, and (c) equally, the same issue of uncertainly arises from the inconsistency in reasoning about future events and treatment of the applicants’ case about the impact the conditions of each visa would have on the probability of recidivism.

F.4    Consideration

F.4.1    Cutting and pasting

68    The overwhelming majority of the 56 paragraphs of the Statement of Reasons that the applicant has demonstrated were included in other decisions of the Tribunal member are relatively anodyne and contain material that is equally applicable to all applications for judicial review of a migration decision. It can readily be inferred from the extent to which these paragraphs are also found in Clark and LKQD that a template has been used to prepare the Statement of Reasons. The use of a template to prepare reasons in itself is not inappropriate. The use of a template in circumstances where there is a prescribed and explicit regulatory and statutory framework can promote consistency in reasoning, ensuring all relevant matters are addressed, and the time taken to prepare the statement of reasons is reduced. At the same time, the use of a template can present dangers if material is not rigorously edited to ensure that the statement of reasons, on its face, makes it clear that it is directed at the particular matter before the Tribunal and demonstrates that an independent mind had been brought to the determination of the issues before the Tribunal.

69    In this case, I am satisfied that the balance of the 170 paragraphs of the Statement of Reasons that were not included in Clark or LKQD demonstrate that the Tribunal member had brought an independent mind to the determination of the applicant’s judicial review application.

70    It is necessary, however, to address the specific complaint that the applicant makes about the inclusion of SR [167] in the Statement of Reasons. On its face, as submitted by the applicant, SR [167] purports to express a conclusion on a significant issue, perhaps the most significant issue in the proceeding.

71    The Tribunal’s conclusion with respect to the community expectations consideration appeared at SR [164]-[168]. In those paragraphs the Tribunal concluded:

164.    The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.

165.    The Tribunal has formed the view that the Applicant’s offending has been serious as it involved violence or threats of violence to others and family violence. The Tribunal has found that there is a moderate risk of reoffending. The Tribunal does not accept the Applicant’s evidence that he ceased drug use in late 2023 and considers that continued (or renewed) use of illicit substances is likely to increase the risk of reoffending. The Tribunal has formed the view that the protection of the Australian community and the fact that the Applicant had committed family violence offences weigh strongly against the revocation.

166.    The Tribunal has rejected the Applicant’s argument that the expectation of the community weigh in his favour or should be given neutral weight.

167.    Significantly, the Tribunal has formed the view that there remains a real risk of the Applicant re offending. Despite the Applicant’s engagement in rehabilitation programs in the past, the Applicant continued the use of alcohol which (he claims) resulted in his offending. The Tribunal has not been satisfied that the Applicant’s past and more recent engagement in rehabilitation programs would necessarily be effective and the Tribunal is not persuaded by the Applicant’s evidence that he will no longer use alcohol in the community.

168.    For the reasons set out above, the Tribunal has formed the view that community expectations also weigh against the revocation.

(Emphasis added.)

72    SR [167] is directed at the risk of the applicant reoffending. Likewise, SR [165] is also directed at the risk of the applicant reoffending. It is also readily apparent that the conclusion at SR [165] is based on different factors to those set out at SR [167] and is expressed differently. At SR [165], the Tribunal concludes that there is “a moderate risk of reoffending” by reference to drug use, whereas at SR [167] the Tribunal states that there remains a “real risk of the Applicant re offending” based on the Applicant’s continued use of alcohol and his past and more recent engagements with rehabilitation programmes. In circumstances where (a) the risk of reoffending is already addressed at SR [165], (b) there was otherwise no reference in the Statement of Reasons to any claim by the applicant that his offending was caused by alcohol or any reference to any engagement by the applicant with alcohol rehabilitation programmes, and (c) the wording in SR [167] is identical to the wording used by the Tribunal in Clark at [111], I am satisfied that the inclusion of SR [167] in the Statement of Reasons was an unfortunate but inadvertent template or cut and pasting error on the part of the Tribunal. It demonstrates regrettable carelessness, not a failure to exercise the statutory task of the Tribunal.

F.4.2    Submissions to the Delegate

73    As submitted by the applicant, on several occasions in the Statement of Reasons, the Tribunal has referred to submissions that were made to the Delegate but were not advanced to the Tribunal and, further, in some cases, were inconsistent with the case advanced by the applicant to the Tribunal. The applicant places particular emphasis on SR [106] that he submits (a) echoes the Delegate’s Decision at [76], (b) was unnecessary for the Tribunal to address, and (c) was inconsistent with the case advanced by the applicant in his statement of facts, issues and contentions at [76]-[81].

74    The Tribunal addressed the family violence consideration in the Statement of Reasons at SR [103] to [108]. The anodyne nature of the reference to the submissions to the Delegate is demonstrated by the following reasoning of the Tribunal at SR [105] to [108]:

105.    The Applicant’s offending is described above. The Police Facts Sheets show that the Applicant had committed family violence offending in relation to his then partner in March 2018. This included the Applicant slapping and striking her when she was pregnant with their child. The 2013 offending may have also constituted family violence.

106.    The Applicant submits in his submission to the delegate that the fact that he will be able to remain in Australia regardless of this decision means this consideration should be neutral. The basis for that argument is unclear. The Direction refers to the Government’s concern and the serious nature of family violence. It is not concerned with the Applicant’s residence in Australia or elsewhere.

107.    In his submission to the Tribunal the Applicant states that the 2018 offending must be viewed in its context as he and his partner moved to a new area for their safety and his past interactions with the police had impacted his mental health problems. The Applicant submits that the 2018 incident was an aberration and he has not committed any family violence offending since 2018. The Tribunal acknowledges that this the case but that does not detract from the fact that the Applicant did commit family violence offences.

108.    The Tribunal finds that the Applicant did engage in family violence. The Tribunal finds that this consideration weighs strongly against revocation.

75    The Tribunal drew a sharp distinction between the submission made to the Delegate and the submission that the applicant had made to the Tribunal. It clearly appreciated that the submission made to the Delegate was not being made to the Tribunal. The conclusion at SR [108] was in response to the submission made at SR [107]. If anything, the reference to the submission made to the Delegate demonstrates an overly comprehensive approach to the task before the Tribunal, not a failure to bring an independent mind to the determination of the weight to be given to the family violence consideration.

76    Next, the applicant sought to place particular emphasis on the following observations of the Tribunal at SR [147] in addressing the “legal consequences of the decision” consideration: [AS.34]

147.     The Applicant submits in his submission to the delegate that if a protection finding is reassessed under the Act and an alternative finding is made, there is a greater possibility that he will be held in detention. In the Tribunal’s view, that submission is speculative. There is nothing before the Tribunal to indicate that any steps have been taken to review the earlier made protection finding. It is speculative to assume that, upon such review, a different finding would be made. It is also speculative to then assume that the Applicant would be detained as a result. The Tribunal is not prepared to engage in such speculation.

77    Again, if anything, the reference to the submission made to the Delegate demonstrates an overly comprehensive approach to the task before the Tribunal, not a failure to bring an independent mind to the determination of the weight to be given to the legal consequences of the decision consideration. The Tribunal (a) does no more than acknowledge the submission to the Delegate, (b) does not suggest it was made to the Tribunal, and (c) notes that, in any event, the submission is speculative, and states that it is not prepared to engage in speculation. The submission made to the Delegate was given no weight and could therefore not have formed part of the dispositive reasoning of the Tribunal.

78    The applicant also sought to rely on the references made by the Tribunal to the applicant’s submissions made to the Delegate at SR [59], [61] and [155]. The applicant also sought to rely on SR [60], but, in this paragraph, the Tribunal was referring to what it had been told, not a submission to the Delegate.

79    The Tribunal’s references at SR [59] and [61] to the submissions made by the applicant to the Delegate were made in the course of a detailed analysis undertaken by the Tribunal of the applicant’s evidence and submissions as to the state of his mental health between SR [45] and [65]. In those paragraphs of the Statement of Reasons, the Tribunal provided a comprehensive summary of the statements the applicant had made to the Tribunal, statements in the applicant’s declaration sworn 19 February 2025, submissions the applicant made to the Tribunal, including in his statement of facts, issues and contentions, statements in his revocation request dated 2 May 2024 and submissions the applicant made to the Delegate.

80    The following concluding paragraphs of the Tribunal’s review of the applicant’s evidence and submissions as to the state of his mental health make plain that its rejection of the applicant’s claim that he could not support himself without the DSP was made on the basis of the evidence before the Tribunal:

63.    The Tribunal does not accept the Applicant’s claim that he will not be able to support himself without the DSP. His evidence to the Tribunal is that he intends to find employment in the construction field, and has met with an employment agent. He told the Tribunal he was able to work full-time in the past. The Applicant seems to have a genuine desire to engage in employment and believes he will be able to, and has taken steps towards that purpose. It has not been established, in the Tribunal’s view, that he will face homeless and ‘severe deprivation’ unless he is in receipt of DSP.

64.     The Applicant notes that he would be subject to parole supervision until November 2025, the purpose of which would be to assist him with reintegration into the community. The Applicant submits that the stabilisation of his mental health and the protective factor of lengthy parole supervision reduce the risk of his engaging in further harmful conduct.

81    The reference at SR [155] to the submissions made by the applicant to the Delegate were made in the course of a detailed analysis undertaken by the Tribunal between SR [153] and [163] of the applicant’s evidence and submissions insofar as they raised matters that are not set out in the Direction. In those paragraphs of the Statement of Reasons, the Tribunal commenced by referring to claims made by the applicant in his revocation request and in submissions to the Delegate and then, at SR [156] to [162], the Tribunal summarised the statements and submissions made by the applicant to the Tribunal and the evidence of Dr Travis Wearne before the Tribunal and then expressed its conclusions at SR [163].

82    Again, in its references to the submissions made by the applicant to the Delegate at SR [59], [61] and [155], the Tribunal has arguably gone further than necessary by acknowledging submissions made to the Delegate but has ultimately addressed the evidence and submissions made by the applicant to the Tribunal in making its findings.

83    In any event, as submitted by the Minister, the Tribunal's review was not adversarial litigation, and the Tribunal’s obligation is not limited to responding to expressly articulated claims but extends to reviewing the Delegate’s Decision on the basis of all the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [61] (Black CJ, French and Selway JJ).

F.4.3    Internal inconsistencies

84    The internal inconsistencies in the Tribunal’s reasoning alleged by the applicant do not demonstrate any constructive failure to exercise jurisdiction. In evaluating the submissions and contentions advanced by the applicant with respect to the risk of recidivism if the applicant held a permanent visa and the applicant’s prospects of future employment, the Tribunal was required to assess the likely state of future events. Inevitably, that will involve a prediction of what is likely to occur. Dismissing some future possibilities on the ground that they do not arise above speculation does not carry with it any necessary inference that engaging in reasoning about future events is internally inconsistent. As the Minister submits, finding that some matters in relation to future events were too speculative but, at the same time, evaluating other aspects of an applicant’s future conduct and circumstances is an incident of the ordinary process of assessing evidence, as required by s 501CA(4) of the Act and the Direction.

85    For these reasons, Ground 3 has not been established.

G.    Disposition

86    The application is to be dismissed, and the applicant is to pay the costs of the Minister, as taxed or agreed.

Associate:

Dated:    12 December 2025