Federal Court of Australia

GNHW v Minister for Immigration and Citizenship (No 2) [2025] FCA 1578

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue calling up the decision of the second respondent dated 6 February 2025 into the Court, and quashing it.

2.    A writ of mandamus issue directed to the second respondent, requiring the second respondent to hear and determine the applicant’s application for review according to law.

3.    The first respondent pay the applicant’s costs of and incidental to the application including reserved costs in a lump sum to be fixed by a registrar if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The applicant is a male citizen of South Sudan. He came to Australia on 25 December 2017. At that time, he held a Global Special Humanitarian (Class BA) (Subclass 202) visa issued to him under the Migration Act 1958 (Cth) (the Act). He was, therefore, on entry to Australia, given that visa, a lawful non-citizen. On 8 January 2020, the applicant was convicted of: intentionally causing injury; being drunk and disorderly in a public place, being drunk in a public place; failing to answer bail; and contravening a condition of bail. As a consequence of his conviction in respect of those offences, the applicant was sentenced by the Magistrates Court of Victoria to imprisonment for 24 months. He was also fined $1,000.

2    The particular circumstances of the most serious of those offences are related in the reasons of the Administrative Review Tribunal (the Tribunal). It is not necessary to detail those circumstances, but I do note that the particular victim of the injury, a triple amputee, was on any view vulnerable and the conduct egregious. A sequel to the convictions and imposition of the term of imprisonment mentioned was that on 24 February 2020, and as the Act dictated – see s 501(3A) – the applicant’s (Subclass 202) visa was cancelled.

3    Upon that cancellation, the applicant became, for the purposes of the Act, an unlawful non-citizen.

4    The applicant appealed against the severity of the sentence of imprisonment imposed upon him in respect of the conviction for the charge of intentionally causing injury. That appeal was successful. On 27 November 2020 the County Court of Victoria reduced the applicant’s sentence to imprisonment for seven months.

5    On 23 December 2020, the applicant applied under the Act for a Protection visa. On 17 June 2021, a delegate of the ministerial predecessor to the present first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister), produced a draft Protection visa assessment record that recorded, amongst other things, that the Minister’s delegate was satisfied that the applicant was a person in respect of whom Australia had protection obligations in terms of s 36(2)(a) of the Act.

6    On 15 December 2021, the applicant was re-notified by the Minister’s department of a decision to cancel his (Subclass 202) visa. He then made a request for revocation of the mandatory visa cancellation. On 4 October 2022, a delegate of the Minister decided not to revoke that visa cancellation. On 23 December 2022, following the lodgement by the applicant of an application for review of that delegate’s decision, the Tribunal affirmed the decision of the Minister’s delegate not to revoke the mandatory cancellation of the (Subclass 202) visa. In turn, on 30 August 2024, the Minister’s department gave to the applicant a notice of intention to consider refusal of the Protection visa under s 501(1) of the Act.

7    The basis for that intended consideration of refusal as specified in the notice was the possession of information which, so it was said, suggested that the applicant did not pass the character test because, in the event that he were allowed to remain in Australia, there was a risk that he would engage in criminal conduct: see s 501(1) and s 501(6)(d)(i).

8    On 14 November 2024 a delegate of the Minister made a decision under s 501(1) to refuse to grant the applicant a Protection visa. The applicant sought the review of that decision by the Tribunal. Also on 14 November 2024, the applicant was, as a sequel to the High Court’s judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 released from immigration detention into the community on a Bridging Visa R, subclass 070 visa (BVR).

9    On 6 February 2025, for reasons given that day, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant the applicant a Protection visa. The applicant has, in turn, applied to this Court, pursuant to s 476A of the Act for the judicial review of the Tribunal’s decision.

10    The grounds of the application for judicial review, as amended, are as follows:

Grounds of application

1.    The Administrative Review Tribunal (Tribunal) erred by asking itself the wrong question in assessing the risk to the Australian community, in that it failed to compare the risk to the community if the applicant was granted a visa, and remained in Australia on a permanent visa, with the risk to the community if he was refused a visa, and remained in Australia on a Bridging R visa, or by failing to consider a substantial and clearly articulated argument. raised by the Applicant in respect of the consideration under para 8.1 of Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction).

Particulars

a.    The Applicant argued that “any potential risk the applicant poses to the community could be effectively mitigated through the grant of permanent residence” (Applicant’s submissions, [36]; Affidavit of Zoe Prince, page 39), in particular that:

As a holder of a protection visa, he would be eligible for government loans and therefore have the option of returning to university studies. Opportunities to find fulfilling employment would also significantly increase if on a permanent visa.

b.     The Tribunal noted at Reasons, [53]:

At hearing I discussed with the Applicant that one of the things that seemed to have contributed to his offending in the past was his use of alcohol and the Applicant agreed. When asked if he thought this would be different in the future, the Applicant said that if he went to school or got a job he would be able to change his drinking ways.

c.    The Tribunal accepted that the Applicant would remain in the Australian community irrespective of its decision to affirm or set aside the delegate’s decision to refuse to grant him a protection visa: Reasons, [123].

d.    In its consideration of the legal consequences of the decision under para 9.1 of the Direction, the Tribunal found at Reasons, [139]:

I accept his opportunities for employment will be greater if he is the holder of a permanent visa. I accept that while he is on a BVR, he will not have access to government loans for tertiary studies.

e.    The Tribunal nonetheless failed to refer to or consider the argument referred to in particular (a) above.

f.    If the Tribunal had considered and accepted the Applicant’s argument, it could have found that the consideration under para 8.1 of the Direction weighed less heavily in favour of visa refusal, that it weighed neutrally, or that it weighed in favour of visa grant.

g.    The error was therefore material.

h.    Furthermore, the Tribunal in assessing the risk of posed to the Australian community failed to compare the risk posed if the applicant remained in the Australian community on a bridging visa with the risk posed if he remained in the Australian community on a permanent visa, as the circumstances of this case required.

2.    The Tribunal erred by misconstruing or misapplying para 8.2 of the Direction or by making a finding or findings that were irrational, illogical or unreasonable or by denying the Applicant procedural fairness.

Particulars

a.    The Tribunal was required to consider if the applicant had engaged in family violence and, if so, the seriousness thereof, where “family violence” was defined in para 4(1) of the Direction to mean “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful”.

b.    The delegate who made the decision under review found that “[t]here is no evidence that [the Applicant] has engaged in conduct that constitutes family violence, as defined in the Direction”: CB 26 [54].

c.    The First Respondent argued that merely “having been the subject of a family violence intervention order issued by Victoria Police, the applicant’s conduct constitutes family violence conduct for the purpose of Direction 110 and weighs against granting the visa”: First Respondent’s submissions, [42]; Affidavit of Zoe Prince, page 17).

d.    The Tribunal found at Reasons, [97]:

The materials before the Tribunal indicate that the Applicant was named as the perpetrator in a family violence report dated 24 July 2019. The report notes that the affected family members were the Applicant’s sister and her children who were under the age of 18 at the time. A LEAP report records that the Applicant returned home late at night appearing argumentative and alcohol affected and had an argument with his sister after she asked him to be quiet because children were sleeping. During that argument the Applicant picked up a butter knife from the kitchen and started waving it around. The report notes that the Applicant did not make direct threats to his sister or anyone else in the household. The police applied for a family violence safety notice. During cross-examination the Applicant agreed that incident had occurred and that he was the subject of a family violence safety notice.

e.    The Tribunal made no reference to the definition of “family violence” at the hearing or in its reasons. It can be inferred that it uncritically accepted the overly broad definition implicit in the First Respondent’s submissions referred to in particular (c) and thereby misapplied the Direction.

f.    In the absence of further evidence about the circumstances of the incident, and its effect on the Applicant’s family members, there was no rationally probative basis for the Tribunal to conclude that the Applicant had ever engaged in conduct that met the relevant definition of “family violence”.

g.    Further or alternatively, the Tribunal was required but failed to inform the Applicant of the relevant definition of “family violence” – this being a new issue that had arisen since the delegate made its decision – and provide him with a meaningful opportunity to address the effect that his conduct had on his sister and her children.

h.    The Tribunal’s finding that the Applicant had engaged in conduct amounting to family violence was essential to its ultimate conclusion that “the primary considerations of the protection of the community, family violence and expectations of the Australian community outweigh the considerations that favour granting the visa”: Reasons, [156].

i.    The error was therefore material.

3.    The first respondent breached his obligation under s 56(1) of the Administrative Review Tribunal Act 2024 (ART Act) to use his best endeavours to assist the Tribunal to make the correct or preferable decision in the review and achieve the objective in s 9 of the ART Act, which materially affected the conduct of the review by the Tribunal and deprived the Tribunal of the ability to consider matters it was required to consider.

Particulars

a.    The applicant made clear submissions (recorded in the Tribunal’s decision record (R) at [134]-[135]) that there was a real prospect of the applicant being removed to a third country, pursuant to s 76AAA of the Migration Act 1958 (the Act), and that it was fanciful to imagine any potential third country would be a well-resourced, industrialised country with legal protections for persons transferred there.

a.    The first respondent breached his obligation under s 56(1) of the Administrative Review Tribunal Act 2024 (ART Act) to use his best endeavours to assist the Tribunal to make the correct or preferable 9 of the ART Act, which materially affected the conduct of the review by the Tribunal and deprived the Tribunal of the ability to consider matters it was required to consider.

b.    The first respondent told the Tribunal that “her instructions were that there were no third country removal options for the Applicant.”: Reason, [136].

c.    At Reasons [138] the Tribunal accepted that removal to a third country was possible but “[a]s no such country has been identified, it is not possible to assess the level of legal protections or conditions that persons removed to any such country might encounter.”

d.    Between September 2024 and January 2025, a number of meetings took place between representatives of Australia and Nauru at which they discussed potentially resettling the cohort of persons affected by the NZYQ decision in Nauru. During the same period, there were written communications between the representatives of the two countries.

e.    On 31 January 2025, the first respondent sent a document titled “Interim Third Country Reception Arrangement” to the President of Nauru.

f.    On 16 February 2025, 10 days after the Tribunal’s decision, the Australian Government announced a deal with the Republic of Nauru to receive the removal of three persons whose visas had been cancelled on character grounds to Nauru, which necessarily required there to be a third country reception arrangement with Nauru under s 198AHB of the Act.

e.    It can be inferred that the first respondent was aware of the existing or impending arrangement with Nauru to accept the removal of persons in the applicant’s position before the time of the Tribunal’s decision.

g.    By 31 January 2025 at the latest and by 1 September 2024 at the earliest, the first respondent had proposed an arrangement or arrangements that met or would meet, upon the commencement of the Migration Amendment Act 2024 (Cth) on 5 December 2024, the broad definition of “third country reception arrangement” under s 198AHB of the Act.

h.    The submissions of the first respondent to the Tribunal gave the impression that there was no existing or impending arrangement with any third country to accept the removal of persons from Australia who could not be removed to their country of origin.

i.    The failure of the first respondent to inform the Tribunal of the existing or impending arrangement with Nauru constituted a breach of s 56(1) of the ART Act.

j.     But for the breach of s 56(1) of the ART Act, the Tribunal would have needed to consider the prospect that the applicant may refuse to co-operate with removal to Nauru, if an invitation was made, and weigh the impact of detention in Australia as a consequence of that non co-operation.

k.    The Tribunal was thereby prevented from properly considering the applicant’s submissions and/or properly assessing the considerations in the Ministerial Direction, resulting in jurisdictional error.

l.    Further and alternatively, the applicant was denied procedural fairness, in that he could have made submissions about the specific impediments he would face on removal to Nauru if the prospect of removing persons in his position to Nauru had been disclosed.

11    There are further facts which, for the purposes of the proceeding are agreed. They are as follows. It is agreed that the findings of fact made by this Court and recorded in redacted form at [36] to [50] in the reasons for judgment of Moshinksy J in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 (TCXM) should be accepted for the purposes of these proceedings. The findings of fact there made in TCXM were as follows:

Communications between Australia and Nauru (September 2024 to 12 February 2025)

39    Between September 2024 and January 2025, a number of meetings took place between representatives of Australia and Nauru at which they discussed potentially resettling the cohort of persons affected by the NZYQ decision in Nauru. Some of these meetings involved the President of Nauru and the Minister for Home Affairs (Australia). Some of the meetings involved Ms Strugnell on behalf of Australia and Secretary Daniel Eoe, the Secretary of the Department of Multicultural Affairs of Nauru, and Secretary Jay Udit, the Secretary for Justice and Border Control of Nauru, on behalf of Nauru.

40    During the same period, there were written communications between the representatives of the two countries. Copies of those communications are included in the Closed Hearing Book and were the subject of the cross-examination of Ms Strugnell. The written communications included [REDACTED].

41    On 31 January 2025, the Minister for Home Affairs (Australia) and the President of Nauru held a meeting in Nauru. Ms Strugnell was present at the meeting and the evidence includes a Record of Conversation in relation to the meeting.

42    Following the meeting, the Minister for Home Affairs (Australia) provided a letter dated 31 January 2025 to the President of Nauru, attaching an “Interim Third Country Reception Arrangement”. The letter included:

Thank you … for Secretary Eoe’s letter of 13 November 2024 to the Australian Government offering to assist with the reception and settlement process of select persons who cannot be returned to their home country. As you are aware, recent amendments to our Migration Act confirm and enhance Australia’s ability to undertake third country reception arrangements and this proposal marks the first such arrangement under these new provisions.

As discussed at our meeting on Friday 31 January 2025, preliminary discussions between our governments have taken place to socialise details of such a reception arrangement including:

•    A minimum 30 year agreement period where financial support would be provided directly to the Government of Nauru in recognition of the numbers settled and the requirement for Nauru to fully settle and integrate the cohort as part of the Nauruan population

•    Options for funding models for calculating the amount of support payable to the Government of Nauru as may be agreed

•    Broad parameters for a phased approach to identify and transfer cohorts of people

•    Non-negotiable conditions posed by Australia for any such persons settled

As advised, Cabinet authority has now been provided and negotiations can proceed at our senior officer level to finalise a formal settlement and funding arrangement.

I have now asked that my senior officers work with Nauruan officials to consider an initial settlement of up to three individuals as a first cohort. This approach will ensure that each Government’s respective procedures and systems are sufficiently mature to support the arrangement going forward. I trust that the small number will support the Government of Nauru in achieving this outcome, by alleviating the demands on the Government of Nauru’s resources and ensuring safe and effective management of the cohort.

Secretary Eoe’s letter of 13 November 2024 also indicated that the Government of Nauru is amenable to accepting individuals without any reservation in relation to age, past offences, or other characteristics. The Australian Government will provide details to the Government of Nauru on the individuals proposed for reception and settlement - as the legislation now allows - including their backgrounds, details of any prior criminal offending, and other relevant information to allow Nauru to determine if the individuals are suitable for settlement.

To allow the initial cohort to commence, I seek your agreement to the interim third country reception arrangement as set out in Attachment A below. Under Australian law, having such an arrangement in place is essential to establish a robust legal framework and to allow advance payments of financial support to be made to the Government of Nauru.

(Emphasis added.)

43    Attachment A to the letter was in the following terms:

Attachment A: Interim Third Country Reception Arrangement

The arrangements set out below constitute a ‘third country reception arrangement’ between the Commonwealth of Australia as represented by the Department of Home Affairs (Department) and the Republic of Nauru (GoN), as contemplated by section 198AHB of the Migration Act 1958 (Australia).

These terms in this arrangement will remain in force until replaced by a new third country reception arrangement, or ceased by mutual consent, as agreed to in writing by both countries.

1.    The settlement arrangement for any individual person shall commence from the individual acceptance date, being the date on which, following receipt by the GoN of a request to settle a named person from the Department, the GoN provides formal written notice to the Department of its willingness to settle this person in Nauru under this arrangement.

2.    The formal notice shall be specific to the person and not general in nature, in order to provide sufficient certainty to the Department to undertake the logistical actions in Australia necessary to remove the person to Nauru for settlement.

3.    The Department shall provide all reasonably requested information, as permitted by Australian law, to the GoN in relation to any individual proposed to be settled to allow for this notice to be issued and appropriate preparations to be made prior to arrival.

4.    The GoN shall grant each person accepted for settlement while this arrangement is in force an indefinite stay visa to enter and remain in Nauru.

5.    The terms of the issued visa shall allow settled people to leave and re-enter Nauru, subject to any reasonable conditions and regulations the GoN believes necessary for the good order of Nauru.

6.    The GoN shall conduct its operations in accordance with the previously discussed conditions for treatment of all settled people, namely:

a)    Treatment in accordance with international legal obligations, including relevant obligations under international human rights laws

b)    Freedom of movement, with no separation from the Nauruan community solely as a result of an individual's status

c)    No imposition of detention, except in accordance with ordinary Nauruan law

d)    A right for individuals to raise new protection claims and have those claims assessed

e)    No risk of arbitrary deprivation of life, application of the death penalty, torture or other cruel, inhuman or degrading treatment or punishment or persecution

f)    No risk of chain refoulement

g)    No imposition of arbitrary or punitive conditions in support of community safety

h)    Access to work rights, and any relevant social safety nets and services

7.    The GoN accepts its responsibility to provide support to settled persons to achieve minimum outcomes in line with Nauruan standards of living including, as necessary and as tailored to individual needs:

a)    Provision of appropriate and gender-sensitive accommodation, including fixtures and furnishings, suitable for males and females and supporting the co-habitation of nuclear family groups where settled

b)    Provision of reasonable allowances for living expenses

c)    Access to local transport services

d)    Access to health services, including telemedicine and telehealth

e)    Access to welfare and education services

f)    Making any other administrative or logistical arrangements required to ensure the safety and wellbeing of settled people and the Nauruan community

i    Until negotiations for a comprehensive funding agreement are finalised, a process for interim payments to support Nauru will be established by way of exchange of letters.

8.    The Department and GoN will meet regularly to discuss GoN progress in the operationalisation of the various mechanisms, procedures, and systems developed for delivery of the settlement program while this arrangement is in force.

9.    In the event that a nominated person does not arrive in Nauru, departs from Nauru after arrival, or is deceased, the Department may terminate the provision of funding in relation to that individual with 30 days’ notice. Specifically but not exhaustively, this clause comes into force:

a)    In the event of an injunction or other compelled action by a court in relation to a named individual which prevents their arrival in Nauru or requires their departure from Nauru

b)    If an individual voluntarily and permanently departs from Nauru due to their securing of permission to enter and remain in another country

c)    If the Department and the GoN otherwise mutually agree that a person has departed from Nauru with or without authority, and there is no reasonable prospect of their return

10.    Payment for a settled person shall cease immediately if an action by the GoN led to an individual being removed or otherwise no longer being present on Nauru.

(Bold emphasis added.)

I note that Attachment A includes a reference (at para 6(f)) to there being no risk of “chain refoulement”. I understand that expression to be interchangeable with “indirect refoulement” and to refer broadly to a situation where a non-citizen is indirectly returned (i.e. via another country or countries) to a country where they face a real risk of persecution or harm.

44    On 4 February 2025, Ms Strugnell sent an email to Secretary Eoe and Secretary Udit, with “client briefs” in relation to the three individuals that Australia proposed that Nauru would receive under the proposed interim arrangement. One of these was the applicant. The background information about the applicant was set out on one page and included:

[REDACTED]

45    On 6 February 2025, Secretary Udit provided Ms Strugnell with a [REDACTED]. Ms Strugnell accepted during cross-examination that [REDACTED].

46    On 7 February 2025, the President of Nauru sent a letter to the Minister for Home Affairs (Australia). The letter included:

Following our discussion, I confirm receipt of your letter dated 31 January 2025. The government of Nauru affirms its commitment to undertaking the Third Country Reception arrangements. Nauru welcomes this initiative and recognises its importance for both our countries. I have instructed our senior officials to engage in discussions and finalise the agreement, ensuring that all necessary terms and conditions are addressed with a view to the earliest implementation.

47    By letter dated 10 February 2025, the President of Nauru wrote to the Minister for Home Affairs (Australia) stating:

Further to my letter of 7 February 2025, I write to confirm that the Government of Nauru agrees to the interim third-country reception arrangement set out in Attachment A of your letter dated 31 January 2025. Further, each of the initial 3 persons, and thereafter any such other persons accepted for settlement while the arrangement is in force, will receive a long-term stay visa to enter and remain on Nauru for a period of 30 years.

(Emphasis added.)

48    Ms Strugnell accepted during cross-examination that, [REDACTED].

49    On 12 February 2025, the Minister for Home Affairs (Australia) sent a letter to the President of Nauru that stated:

Thank you for confirming that the Government of Nauru agrees to the interim third country reception arrangement set out in Attachment A of my letter dated 31 January 2025, and for advising that each of the initial 3 persons will receive a long term stay visa to enter and remain on Nauru for a period of 30 years.

On that basis, my letter of 31 January 2025, your reply letter of 10 February 2025 and this letter together shall constitute an agreement between the Commonwealth of Australia and the Government of Nauru, which will enter into force upon your receipt of this letter.

This agreement is a statement of the shared understanding of the participants and is not intended to create any legally binding rights or obligations.

(Emphasis added.)

50    As noted above, the respondents’ case is that the exchange of letters between the Minister for Home Affairs (Australia) and the President of Nauru constituted an agreement or arrangement between Australia and Nauru, albeit an interim agreement or arrangement that applied to only three individuals (one of whom was the applicant). One aspect of the applicant’s case (proposed new ground 2A) appears to put in issue whether an agreement or arrangement was in fact formed. Subject to consideration of that ground (including whether it can be raised), I find that the exchange of letters between the Minister for Home Affairs (Australia) and the President of Nauru constituted an agreement or arrangement, albeit an interim one. It is common ground that the Interim Agreement related to only three persons, one of whom was the applicant.

[emphasis in original]

12    It is further agreed for the purposes of these proceedings that the following, as at the time when the review hearing occurred and to the extent the facts recited preceded 6 February 2025. So it agreed as follows. Discussions at a very high level of executive government were occurring between representatives of the Commonwealth of Australia and representatives of the Republic of Nauru. Those discussions included discussions about the potential removal from Australia to Nauru of persons affected by the decision of the High Court of Australia in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 (NZYQ). The applicant was part of the NZYQ cohort and, next, the applicant himself was not the subject of any specific mention in those discussions between representatives of the Commonwealth of Australia and representatives of the Republic of Nauru, and the applicant continues to be part of the NZYQ cohort. Those discussions, as at the time when the Tribunal made its decision on 6 February 2025, had culminated in a personal attendance by the present Minister for Home Affairs, the Honourable Tony Burke MP, and officers of his department on the President of Nauru in Nauru.

13    In evidence is a letter, sent in the immediate aftermath of those discussions, dated 31 January 2025, by Mr Burke to the president. That letter is in the following terms:

Dear President Adeang,

Agreement to proposed third-country reception arrangement

Thank you for your invitation to Nauru for the Independence Day celebrations and the opportunity to meet with key Government officials. The priorities our Governments collaborate on are a reflection of our unique and enduring partnership and common intent to ensure the security and prosperity of the Asia-Pacific region.

Thank you also for Secretary Eoe’s letter of 13 November 2024 to the Australian Government offering to assist with the reception and settlement process of select persons who cannot be returned to their home country. As you are aware, recent amendments to our Migration Act confirm and enhance Australia's ability to undertake third country reception arrangements and this proposal marks the first such arrangement under these new provisions.

As discussed at our meeting on Friday 31 January 2025, preliminary discussions between our governments have taken place to socialise details of such a reception arrangement including:

•    A minimum 30 year agreement period where financial support would be provided directly to the Government of Nauru in recognition of the numbers settled and the requirement for Nauru to fully settle and integrate the cohort as part of the Nauruan population

•    Options for funding models for calculating the amount of support payable to the Government of Nauru as may be agreed

•    Broad parameters for a phased approach to identify and transfer cohorts of people

•    Non-negotiable conditions posed by Australia for any such persons settled

As advised, Cabinet authority has now been provided and negotiations can proceed at our senior officer level to finalise a formal settlement and funding arrangement.

I have now asked that my senior officers work with Nauruan officials to consider an initial settlement of up to three individuals as a first cohort. This approach will ensure that each Government's respective procedures and systems are sufficiently mature to support the arrangement going forward. I trust that the small number will support the Government of Nauru in achieving this outcome, by alleviating the demands on the Government of Nauru’s resources and ensuring safe and effective management of the cohort.

Secretary Eoe’s letter of 13 November 2024 also indicated that the Government of Nauru is amenable to accepting individuals without any reservation in relation to age, past offences, or other characteristics. The Australian Government will provide details to the Government of Nauru on the individuals proposed for reception and settlement - as the legislation now allows - including their backgrounds, details of any prior criminal offending, and other relevant information to allow Nauru to determine if the individuals are suitable for settlement.

To allow the initial cohort to commence, I seek your agreement to the interim third country reception arrangement as set out in Attachment A below. Under Australian law, having such an arrangement in place is essential to establish a robust legal framework and to allow advance payments of financial support to be made to the Government of Nauru.

Thank you for welcoming me back to Nauru, and I hope that you look on this proposed arrangement favourably, noting it represents an important first step towards a significant expansion of the partnership and valued relationship between our Governments.

Attachment A: Interim Third Country Reception Arrangement

The arrangements set out below constitute a ‘third country reception arrangement’ between the Commonwealth of Australia as represented by the Department of Home Affairs (Department) and the Republic of Nauru (GoN), as contemplated by section 198AH B of the Migration Act 1958 (Australia).

These terms in this arrangement will remain in force until replaced by a new third country reception arrangement, or ceased by mutual consent, as agreed to in writing by both countries.

1.    The settlement arrangement for any individual person shall commence from the individual acceptance date, being the date on which, following receipt by the GoN of a request to settle a named person from the Department, the GoN provides formal written notice to the Department of its willingness to settle this person in Nauru under this arrangement.

2.    The formal notice shall be specific to the person and not general in nature, in order to provide sufficient certainty to the Department to undertake the logistical actions in Australia necessary to remove the person to Nauru for settlement.

3.    The Department shall provide all reasonably requested information, as permitted by Australian law, to the GoN in relation to any individual proposed to be settled to allow for this notice to be issued and appropriate preparations to be made prior to arrival.

4.    The GoN shall grant each person accepted for settlement while this arrangement is in force an indefinite stay visa to enter and remain in Nauru.

5.    The terms of the issued visa shall allow settled people to leave and re-enter Nauru, subject to any reasonable conditions and regulations the GoN believes necessary for the good order of Nauru.

6.    The GoN shall conduct its operations in accordance with the previously discussed conditions for treatment of all settled people, namely:

a)    Treatment in accordance with international legal obligations, including relevant obligations under international human rights laws

b)    Freedom of movement, with no separation from the Nauruan community solely as a result of an individual's status

c)    No imposition of detention, except in accordance with ordinary Nauruan law

d)    A right for individuals to raise new protection claims and have those claims assessed

e)     No risk of arbitrary deprivation of life, application of the death penalty, torture or other cruel, inhuman or degrading treatment or punishment or persecution

f)    No risk of chain refoulement

g)    No imposition of arbitrary or punitive conditions in support of community safety

h)    Access to work rights, and any relevant social safety nets and services

7.     The GoN accepts its responsibility to provide support to settled persons to achieve minimum outcomes in line with Nauruan standards of living including, as necessary and as tailored to individual needs:

a)    Provision of appropriate and gender-sensitive accommodation, including fixtures and furnishings, suitable for males and females and supporting the co-habitation of nuclear family groups where settled

b)    Provision of reasonable allowances for living expenses

c)    Access to local transport services

d)    Access to health services, including telemedicine and telehealth

e)    Access to welfare and education services

f)    Making any other administrative or logistical arrangements required to ensure the safety and wellbeing of settled people and the Nauruan community

i.    Until negotiations for a comprehensive funding agreement are finalised, a process for interim payments to support Nauru will be established by way of exchange of letters.

8.    The Department and GoN will meet regularly to discuss GoN progress in the operationalisation of the various mechanisms, procedures, and systems developed for delivery of the settlement program while this arrangement is in force.

9.    In the event that a nominated person does not arrive in Nauru, departs from Nauru after arrival, or is deceased, the Department may terminate the provision of funding in relation to that individual with 30 days’ notice. Specifically but not exhaustively, this clause comes into force:

a)    In the event of an injunction or other compelled action by a court in relation to a named individual which prevents their arrival in Nauru or requires their departure from Nauru

b)    If an individual voluntarily and permanently departs from Nauru due to their securing of permission to enter and remain in another country

c) If the Department and the GoN otherwise mutually agree that a person has departed from Nauru with or without authority, and there is no reasonable prospect of their return

10. Payment for a settled person shall cease immediately if an action by the GoN led to an individual being removed or otherwise no longer being present on Nauru.

14    Another material fact important for the purposes of the development by the applicant of his grounds of review is what transpired between the Minister’s representative, Ms Liddy, and the member constituting the Tribunal at the hearing of the review application. The following exchange occurred at the hearing in relation to the existence or otherwise of any agreement with Nauru:

Ms Liddy:    No third party country has been identified for the applicant. In my submission, should that be considered by the Tribunal as a potential legal consequence for the decision or being Legal Aid's submission on that point it is speculation as to when and if that would occur.

Facilitator:    I presume that you don’t disagree with the substance of their submission that the applicant is now removed [unclear] that if a third country reception arrangement is [unclear] if that country agrees to accept the applicant and the Minister [unclear] there [unclear] stipulated by [unclear] that the applicant could be removed, that the government now has those powers.

Ms Liddy:    It is a power contained in the Act. Yes.

Facilitator:    You’re saying essentially that there’s not enough information to make a real assessment of the likelihood of that happening.

Ms Liddy:     Yes. Senior Member.

Facilitator:     Do you dispute any of the statements that VLA have attributed to the Minister and the Prime Minister and various people in their submissions about their desire and commitment to making that happening?

Ms Liddy:    Senior Member relying on press conferences, in my submission is not a legal submission and that it is again speculation. My instructions are that there are no third party country removal options. Whilst that power does exist under the Act, the legal consequence of affirming [unclear].

Interpreter:    Sorry, come again?

Ms Liddy:    The legal consequence of affirming the decision is that the applicant would remain in the Australian [unclear].

Facilitator:    Unless and until a third country removal option is possible.

Ms Liddy:    If that was ever available. In circumstances where there is no possibility of the applicant being removed to South Sudan, the applicant would not face any impediments to being returned. As such that consideration in my submission should carry neutral weight. Ultimately it’s my submission that the primary considerations, being the protection of the Australian community, the family violence consideration and the expectations of the Australian community weigh against granting the applicant the visa and in my submission outweigh any factors identified [unclear]. In my submission the correct and referable decision is to affirm the decision under review. Senior Member, those are my submissions unless I can be of any further assistance.

15    In accordance with the Tribunal’s usual practice, the applicant filed, prior to the hearing, a statement of facts, issues and contentions. The applicant had the benefit in the preparation of that statement of assistance from Victoria Legal Aid. That aid did not, though, extend to the provision of representation for the applicant at the hearing before the Tribunal.

16    It is necessary, in order to address the grounds of review, to set out something of the way in which the applicant put his case in that statement. In particular, at [35] and [36] and [37], the applicant put the following:

35.    Moreover, his current circumstances while residing in the community on a BVR, with nil curfew and monitoring conditions attached, indicate that the Minister evidently did not consider the applicant to pose a significant risk to other people and therefore did not consider it necessary to impose such conditions for the protection of the Australian community. This should be a considered favourable when assessing the level of risk posed by the applicant to the community.

36.    It is also submitted that any potential risk the applicant poses to the community could be effectively mitigated through the grant of permanent residence, should the refusal decision be set aside. Whilst on a temporary visa, we submit that t feelings of social stigma, ostracisation, and possible perceptions (either self or from others) as a ‘second-class citizen’ are liable to negatively impact upon his mental health. Whereas having a permanent visa and being able participate fully and freely in Australian life and access all services will lead to a reduction in stress, trauma and uncertainty in relation to his visa status and potential deportation and will improve his chances of rehabilitation. As a holder of a protection visa, he would be eligible for government loans and therefore have the option of returning to university studies. Opportunities to find fulfilling employment would also significantly increase if on a permanent visa.

37.    Longer term, if it becomes apparent that the applicant requires more intensive supports, he will be unable to access funding from the National Disability Insurance Scheme (NDIS) on a temporary visa.

17    The applicant also addressed, at [38] and [39] of that statement, a criterion found in directions issued by the Minister under s 499 of the Act concerning family violence:

18    Family Violence Committed by the Non-Citizen

38.    There is no evidence of a family violence safety notice or any court proceedings in relation to the Vicotria Police incident report dated 24 July 2019. In the decision of Member Bygrave it is recorded that the applicant accepted that the incident occurred.

39.    The applicant was never charged with any offences relating to the alleged incident, or for a breach of any order. Nor is there any evidence of any other violence towards any member of his family. We submit that any weight in support of refusal of his protection visa should be tempered by the fact that the applicant does not have any criminal conviction relevant to family violence, nor was this relevant to the refusal decision.

19    Particular attention was also given in the applicant’s statement to submissions concerning the legal consequences of the decision. The passage concerned in the statement, though lengthy, has assumed a particular importance, especially in relation to ground 3. It was put in the statement:

Legal consequences of decision

49.    The Direction at 9.1 requires the Tribunal to be mindful that unlawful non-citizens are generally liable to removal as soon as reasonably practicable under s 198 of the Act and, in the meantime, detention under s 189. It notes that s 197C(1) of the Act provides that non-refoulement obligations are irrelevant for the purposes of the removal power: Direction 9.1(1). Paragraphs 9.1.1 and 9.1.2 respectively deal with non-citizens covered by, and not covered by, a protection finding.

50.    The applicant is covered by a protection finding, dated 17 June 2021, where a delegate found that he met the requirements of s 36(2)(a) of the Act (G3:32-78).

51.    Paragraph 9.1.1(2) of the Direction notes that except in limited circumstances, s 197C(3) ensures that an unlawful non-citizen cannot be removed to a country in respect of which a protection finding has been made. It notes that in those circumstances, a non-citizen must remain in immigration detention pursuant to s 189 unless they are granted another visa or can be removed to a country other than the country by reference to which the protection finding was made.

52.    In circumstances not contemplated by the Direction, the applicant was released from immigration detention on 14 November 2024 after being granted a Bridging R visa (BVR) under r 2.25AB of the Migration Regulations 1994 (Cth) (Regulations). This was apparently because at present, there is no real prospect of his removal to South Sudan becoming practicable in the reasonably foreseeable future, and there are no other countries to which he can be removed.

53.    The applicant’s detention is not presently justified by either one of two possible “legitimate non- punitive purposes”, namely removal or enabling a visa application. There is therefore no immediate prospect of “indefinite detention” in Australia. However, the BVR is subject to multiple onerous monitoring and other provisions including notifying the Department of any changes to his address, phone number, email account or employment not less than two days prior and notifying the Department if intended travel interstate or overseas at least 7 days prior, breach of which is punishable by up to five years’ imprisonment with a minimum term of one year.

54.    Recent Tribunal decisions have held that NZYQ-affected BVR holders such as the applicant will “remain in the community” irrespective of the Tribunal’s decision to affirm or set aside a character refusal or cancellation.

55.     That observation is no longer true.

56.    On 5 December 2024, amendments to the Act made by the Migration Amendment Bill 2024 (Amendment Bill) Migration Amendment (Removal and Other Measures) Bill 2024 (Removal Bill) came into effect. The legal and practical consequences for the applicant are potentially life- altering, if not life-destroying. This is so for two reasons.

57.    First, the applicant can be removed to a third country if the decision is affirmed under s 501(1) of the Act.

58.    The applicant is now a “removal pathway non-citizen” under ss 5(1) and 199B(1)(b) and meets the requirements of ss 76AAA(1)(a) of the Act. If his Protection visa application is finally determined adversely, and he is granted a relevant permission by a foreign country that is a party to a third country reception arrangement (third country) within the meaning of s 198AHB, he will meet the requirements of ss 76AAA(1)(b), (c) and (d) respectively. His BVR will cease. He will become liable to removal to the third country, and his detention prior to removal again justified on the basis that it is for that legitimate non-punitive purpose.

59.    A third country may detain the applicant: s 198AHB(5). Under ss 198(12)-(13) and 198AD(11A)-(11B), the Commonwealth will enjoy broad immunity from civil liability arising from the applicant’s removal or treatment in the third country. There are no guaranteed minimum standards of treatment upon removal to a third country, such as those set out in repealed s 198A(3) of the Act, which the High Court found Malaysia was unable to meet.9 Nothing would prevent a third country from refouling the applicant to South Sudan.

60.    The Minister can compel the applicant to cooperate with his removal to a third country by making a “removal pathway direction” under ss 199C(1) or (2). Non-compliance is a criminal offence punishable by up to five years’ imprisonment with a minimum term of one year under s 199E. There would be nothing in s 199D to prevent the making of a removal pathway direction and he would not be protected by s 197C(3) in respect of the third country.

61.    On 7 November 2024, the Minister made a publicly reported statement that the “government’s first priority is community safety … the first priority is not ankle bracelets or detention for these people, our first priority is: we don’t want them in Australia at all”. In view of this position, and the express contemplation in the recent amendments that harm including deprivation of liberty will occur, it is extremely unlikely any third country will be a well-resourced, industrialised country with legal protections for people such as the applicant. It is far more likely to be an impoverished country induced via financial aid to “warehouse” people Australia does not wish to deal with. Indeed, there are numerous previous examples of this including: two ‘Pacific Solutions’ to transfer and process boat arrivals on Nauru and Manus Island (Papua New Guinea) in 2001 and 2012; the Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement (‘the Malaysian Arrangement’) in 2011; and the Cambodia agreement signed in 2014.

62.    Second, the applicant can be removed to South Sudan if the decision is affirmed under s 501(1) of the Act and the Minister decides that a protection finding would no longer be made.

63.    As stated, the applicant is now a “removal pathway non-citizen” under ss 5(1) an199B(1)(b) of the Act. He will meet the requirements of 197D(1) if the Tribunal decides the affirm the decision. Under s 197D(2), if the Minister is satisfied that the applicant is “is no longer a person in respect of whom any protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made, the Minister may make a decision to that effect”.

64.    Prior to the applicant’s visa refusal pursuant to s 501, a delegate of the Department found that the applicant is owed protection on the basis of his Nuer ethnicity and race. The assessor also found that although the applicant has been convicted of a serious crime, he is not a danger to the Australian community per s 36(1C)(b) of the Act. The assessor was satisfied that the applicant was not currently a danger to the community, nor would he be into the foreseeable future. (G3: 34-78)

65.    However, this can be revisited by the Minister at any time.

66.    Should the decision be affirmed and the applicant remains in Australia on a BVR, he will be subject to multiple conditions, breach of which is a criminal offence for which the court must impose a minimum sentence of one year imprisonment (s76DA). This includes a condition to assist with, report for and facilitate his own removal from Australia. It is submitted that such conditions are potentially destabilising and will create a degree of uncertainty that could undermine the protective factors being his personal connection to his home and his family.

67.    Remaining subject to a BVR, will have a negative impact on his ability to obtain meaningful employment due to the uncertain and stigmatised nature of a BVR. It will also impact on his ability to engage in further studies as he will not be able to access HELP loans.

68.    In Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 Chief Justice Allsop reflected on the importance of decisionmakers grappling with the real human consequences of their decisions:

The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people.

69.    It is submitted that the Tribunal must take account of the following practical and legal consequences of refusal to grant the applicant a Protection visa:

a.    The applicant will remain on a BVR indefinitely. He will be unable to make an application for any other substantive visa. He will be subject to conditions that create uncertainty of visa status. This will impact his opportunities for employment, education and community connection which will have negative impacts on prospects of rehabilitation.

b.    There is a real chance that:

i.    the applicant’s protection finding will be set aside and his removal to South Sudan will become possible; or

ii.    the applicant will become subject to a third country arrangement, and his removal to that third country will become possible.

c.    While it is to some degree uncertain whether either outcome will eventuate, the Minister’s avowed determination to remove people like the applicant from Australia should be taken very seriously.

d.    Removal to South Sudan or a third country will have disastrous effects on the applicant’s physical and mental health.

e.    The oppressive emotional impact of being forced to contemplate and ruminate over the uncertainty of his future and these potential consequences, and comply with directions to facilitate his removal, is a direct and immediate consequence of refusal under s 501(1).

[footnote references omitted]

20    I turn, then, to consider the merits of each of the grounds.

Ground 1

21    The applicant’s submissions in support of ground 1 carried with them all of the particularised features of that ground and set out above. The essence of the alleged error was that the Tribunal, although it had made reference to the protection visa position and BVR position, had not, as the applicant’s submissions in his statement expressed, considered, in a differentiated way, that any potential risk that the applicant posed to the community could be effectively mitigated through the grant of permanent residence – ie, a protection visa – instead of differentiating a risk assessment as to the position if a protection visa were granted compared with if he continued to hold a BVR.

22    The submission went that all that the Tribunal did was to assess risk in an undifferentiated way. So it was that it was submitted that the decision was flawed in a like way to that found by Bromwich J in DVRL v Minister for Immigration and Citizenship [2025] FCA 876 (DVRL), especially at [24] and [36] to [38].

23    The Minister’s riposte to this, apart from a submission that DVRL was not correctly decided – and I note that that case is presently the subject of an appeal to the Full Court – was that on a fair reading of the reasons of the Tribunal as a whole, it was apparent that there had been a differentiated risk assessment.

24    Before turning to the merits of that, some general principles relating to the scrutiny of reasons of administrators should be recited.

25    First and foremost is the emphatic pronouncement, with reference to a Full Court of this Court’s judgment in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) that the reasons of administrators, such as the Tribunal, are meant to inform the reader and should not be read narrowly and with an eye for error.

26    Later in time is the reminder offered by the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 280 CLR 265, especially at [50], that the sequential expression of reasons and their dealing separately with particular constituent considerations specified in a ministerial direction should not lead to a ready inference from that type of sequential structuring and dealing that there has been any quarantining by the Tribunal or other administrative decision-maker of the assessment of each topic in isolation from every other topic. That is a subject earlier canvassed by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 198 ALR 59 at [14]. In light of these authorities, I readily accept that even though reasons may be expressed and thereby read sequentially, it by no means follows from this that the decision-maker’s reasoning process is sequential. To this I would add, having regard to Wu Shan Liang and the need to read reasons as a whole, were it otherwise, the business of public administration would become impossibly complicated in relation to the furnishing of reasons sufficient on later challenge on judicial review.

27    It is a feature of the Tribunal’s reasons, even read in the manner indicated, that there has been no differentiated assessment of risk, notwithstanding the way in which the applicant’s claim was put to the Tribunal.

28    In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [22] through to and including [27], under the heading “Decision-makers’ approach to representations”, important observations were made in the joint judgment of Kiefel CJ and Keane, Gordon and Steward JJ with respect to the undertaking of an assessment of a particular claim by an administrative decision-maker, of which the Tribunal is one. It is clear enough from what is there stated, if it were not already clear, in any event, from Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, that what is required is to consider claims that are clearly articulated and which clearly arise on the materials before the decision-maker.

29    It was put on behalf of the Minister that such consideration had occurred and, in any event, did not clearly arise on the material before the Tribunal.

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

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

Ground 2

32    As to ground 2, there is an exact symmetry of language between the definition of family violence in s 4(1) of the Minister’s Direction and the definition of family violence in s 4AB of the Family Law Act 1975 (Cth) (Family Law Act). There is, it is submitted, a failure on the part of the Tribunal to address the subject of family violence as defined and thus a failure to take into account a relevant consideration. In support of that submission, it is said that it was necessary for the Tribunal to address whether the behaviour, admittedly conceded here, coerced or controlled a family member or caused a family member to be fearful.

33    In support of that, I was pressed with views expressed by Downes J in MVPF v Minister for Immigration and Citizenship [2025] FCA 1263. In that case, her Honour expressed a preference for the reasoning of the minority of the Federal Circuit and Family Court (Division 1) Full Court (Family Court Full Court) in Pickford v Pickford (2024) 70 Fam LR 85 (Pickford v Pickford).

34    There is no explanatory statement issued in relation to the Direction which would explain why it was that there existed the symmetry of language between the definition of family violence in the direction and s 4AB(1) of the Family Law Act. However, it seems to me, just on the face of the Direction and the Family Law Act, that the symmetry of definitional language is extremely unlikely to be coincidental or the result of an uncritical copying and pasting into the Direction of a Family Law Act definition.

35    It was put that the Direction and the Family Law Act were directed to different ends, and hence the definitions fell to be considered in different contexts. At a general level of abstraction, of course, that must be so. But, on closer study, it by no means follows that there is no symmetry of public policy purpose or statutory purpose abroad here.

36    The Direction is intended to give guidance to those exercising powers on behalf of, or in place of, the Minister or a delegate in relation to the issuing or cancellation or revocation of particular types of visa. It seems inherently unlikely that conduct that might give rise to occasion to consider cancellation, or revocation of cancellation, could not overlap with conduct which might become the subject of proceedings in a matrimonial causes jurisdiction. Indeed, the subject of whether or not a visa should be cancelled, or revocation of a cancellation should occur, might readily be regarded as an entirely predictable potential sequel to matrimonial causes proceedings involving a visa holder. So I am by no means persuaded that the context is materially different.

37    There is an obvious, in my view, public policy benefit in the Minister’s aligning what, for the purposes of his Direction under s 499, will constitute family violence with what constitutes family violence for the purposes of the Family Law Act. In turn, that, to me, lends a very particular force to a deliberate preferment by a majority of the intermediate appellate court, the Full Family Court, charged with the specialist jurisdictional responsibility for determining appeals under the Family Law Act. In my view, and with respect, judges of this Court, especially when sitting in the original jurisdiction, should be extremely cautious indeed in departing from the considered construction adopted by a majority of the Full Family Court in relation to a not materially distinguishable definition.

38    Of course, that is not to say that either the definition of family violence in the Minister’s Direction or that found in s 4AB(1) of the Family Law Act is without difficulty. Whether I would classify the views of the minority in Pickford v Pickford as compelling is another subject. I would certainly, with respect, regard those views as reasonably open, but the position remains, in respect of an admittedly difficultly worded definition, that a particular view has commanded the support of a majority of the Full Family Court.

39    It is only to be expected, in circumstances such as this and in a country governed by the rule of law, that in public administration – and that includes not just the Minister and his department but the Tribunal – deference would be given to the construction favoured by the majority of the Full Family Court. As to this Court, for all the reasons that I have given and although, strictly, the judgment of that court does not bind judges either in original or appellate jurisdiction in this Court, it is, with respect, a very strong thing indeed to depart from a considered majority view of a Full Court of the Family Court.

40    As it transpires, it is not necessary in this case, on the facts, to reach any concluded view as to the true construction of the definition of family violence in the Direction. That is so even though, for the reasons given, I would be inclined to defer to the views of the majority in Pickford v Pickford. The point truly does not arise in the circumstances of this particular case, having regard to the way in which family violence was put in the passage quoted in the submission and, in turn, to the way in which the Tribunal dealt with that subject in its reasons under the heading Family Violence. The Tribunal stated:

Family violence committed by the non-citizen

95.     Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.

96.    The Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

97.    The materials before the Tribunal indicate that the Applicant was named as the perpetrator in a family violence report dated 24 July 2019. The report notes that the affected family members were the Applicant’s sister and her children who were under the age of 18 at the time. A LEAP report records that the Applicant returned home late at night appearing argumentative and alcohol affected and had an argument with his sister after she asked him to be quiet because children were sleeping. During that argument the Applicant picked up a butter knife from the kitchen and started waving it around. The report notes that the Applicant did not make direct threats to his sister or anyone else in the household. The police applied for a family violence safety notice. During cross-examination the Applicant agreed that incident had occurred and that he was the subject of a family violence safety notice.

98.     I accept the Applicant was never charged with any offence relating to this incident, nor is there any other evidence of violence towards any member of his family. I give this factor some small weight in favour of refusing to grant the protection visa.

[footnote references omitted]

41    Those reasons make reference to findings made in the earlier tribunal proceeding to which I have referred and to the applicant’s acceptance of those findings as to his conduct. Yet further, if one looks in detail at the family violence safety notice, and all that carried with it in terms of the description of the incident concerned, it admits only of a conclusion by the Tribunal, even if not expressly made, that the conduct concerned occasioned fear.

42    There is just nothing in the material before the Tribunal which required the Tribunal to address the subject of family violence with any greater level of engagement than that evident in the Tribunal’s reasons. Further, on their face, the Tribunal’s reasons do not address in detail the definition and elements in respect of family violence in the Direction. That also reflects the way in which the applicant’s statement was directed to that subject. Yet further, as is apparent from the way in which the Tribunal engaged with the subject, it accepted the submission on behalf of the applicant and accorded weight accordingly in its reasons.

43    Therefore, there was no denial of procedural fairness by the Tribunal to the applicant in the way with which the Tribunal dealt with the subject of family violence. Further, the Tribunal addressed the claim as made. I dismiss ground 2.

Ground 3

44    I turn to ground 3.

45    Section 56 of the Administrative Review Tribunal Act 2024 (Cth) (Administrative Review Tribunal Act) provides, by subs (1), as follows:

Parties and their representatives to assist Tribunal

Decision - makers and their representatives

(1)    In a proceeding for review of a decision, the decision - maker and any person representing the decision - maker must use their best endeavours to assist the Tribunal to:

(a)    make the correct or preferable decision in relation to the proceeding; and

(b)    achieve the objective in section 9.

46    A consequence of the statement, as quoted above in the excerpt from transcript of the hearing on 22 January 2025, was that the Tribunal dealt with the subject of consequences if removed in a very particular way.

47    The Tribunal’s reasons disclose that it found it unnecessary to consider the position in relation to the reasonably foreseeable future if the applicant were removed to a third-party country – in other words, a country apart from South Sudan – in light of the information provided to it at the hearing. That information was, in my view, true, but it was not the whole truth. That finding, in no way, I emphasise, carries with it any finding whatsoever of any deliberate intent on the part of Ms Liddy for the Minister to make a false or misleading statement. But it was not the whole truth as the Minister’s department knew it to be in response to the question asked by the Tribunal.

48    It was put, in submissions, that the applicant could not show actual knowledge of falsehood and that constructive knowledge was not sufficient, even if that could be regarded as forming part of the information base against which the adequacy of the answer could be measured. In this regard, reliance was placed on a judgment of Charlesworth J, Chukwuma v Minister for Immigration and Multicultural Affairs [2025] FCA 1302 at [34] to [36]. I am by no means persuaded, having regard to the function or jurisdiction consigned to the Tribunal, that constructive knowledge carried with it all of the knowledge recited in the agreed facts and should be imputed to the Minister in the review proceeding in the Tribunal.

49    Reflection upon the history and purpose of the review jurisdiction, of which s 500 of the Act is an example, bears that out, in my view. The origins in Australian public law of the type of review jurisdiction consigned to the Tribunal by s 500 of the Act may be traced to the review jurisdiction consigned, for federal taxation law purposes, to a board of review and considered by the Judicial Committee of the Privy Council in Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530, especially at 544 to 545. The Judicial Committee in that case upheld the constitutional propriety of the then Taxation Board of Review, constitutional propriety in the sense that the board did not exercise the judicial the power of the Commonwealth but rather was in the nature of administrative machinery sitting in place of the commissioner.

50    So it is in relation to the Tribunal in relation to delegates of the Minister. In turn, that means, in terms of more modern authority, that the observations made by the High Court in Miller v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 278 CLR 628 at [14] are applicable:

14    The jurisdiction of the Tribunal, as is well settled, is in essence to remake the decision under review. The jurisdiction is “‘to do over again’ that which was done by the primary decision-maker”: “to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review”.

Sitting in place of a primary decision-maker on review does not carry with it sitting in a vacuum uninformed by that which was before, or could be before, the primary decision-maker. To compartmentalise the review process in that way would be completely subversive of Parliament’s intent in providing for external review on the merits.

51    The Tribunal was deprived by the Minister’s answer of the opportunity to address a particular scenario put to it by the applicant in his statement. That being so, the exercise of the review function miscarried. It miscarried either because the Tribunal, in the circumstances and given the false or misleading statement to it, did not discharge its function of reviewing the decision as at the date of the decision with reference to the position as at the date of the decision, or the Tribunal was led into, albeit without any malice, the position of denying the applicant procedural fairness.

52    It is not for me to speculate as to what the final conclusion might have been administratively had the facts recited above been put to the Tribunal by way of a fully responsive answer. To do that would be to repeat the error identified as to materiality by the High Court in LPDT. It was for the Tribunal to decide, against the background of a full disclosure of the factual position, what was or was not reasonably foreseeable in relation to the applicant.

53    For that reason, I expressly refrain from embarking on a detailed analysis of the material, especially including the Minister’s letter to the president of 31 January 2025. It is enough to recognise that although in terms the applicant did not form part of the first group, there is, in the correspondence, the prospect that that group may be expanded so as to include a cohort of which the applicant was a member – or even just, further, the applicant – and that is so even though the applicant is not expressly named. Those identified in the first group are members of a cohort of which the applicant is also a member.

54    It is possible to reach this conclusion on the facts without embarking upon a consideration of whether s 56 of the Administrative Review Tribunal Act gives rise to an obligation. I note that in Shord v Federal Commissioner of Taxation (2017) 253 FCR 157 at [124] to [132], and with reference to an equivalent predecessor found in s 33 of the Administrative Appeals Tribunal Act 1975 (Cth), the view was expressed by Siopis and White JJ in their joint judgment that this equivalent provision was “aspirational”.

55    In turn, that provokes the thought that even if s 56 were aspirational such that it might be said that its transgression could not sound in a jurisdictional error, in the same way as the subject was canvassed with respect to s 353 and s 357A of the Act by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [51] and following, the position which would nonetheless obtain, as is highlighted in that part of Li, is that the Tribunal, as an officer of the Commonwealth, was obliged to afford the applicant procedural fairness. A consequence of the false or misleading position put to the Tribunal in terms of the whole truth not being provided in relation to dealings with Nauru was that the Tribunal did not address the subject of what was reasonably foreseeable. That being so, ground 3 must be upheld.

56    For the reasons which I have given, I would quash the Tribunal’s decision and remit the matter to the Tribunal for further consideration according to law.

Associate:    

Dated:    11 December 2025