Federal Court of Australia

Minister for Immigration and Citizenship v RXJT [2026] FCA 33

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    The applicant pay the first respondent’s costs of the proceeding, to be determined on a lump sum basis.

3.    By 4.00 pm on 24 February 2026, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of agreement:

(a)    by 4.00 pm on 10 March 2026, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) (Practice Note);

(b)    by 4.00 pm on 24 March 2026, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 and 4.14 of the Practice Note; and

(c)    the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, the Minister for Immigration and Citizenship (the Minister), seeks judicial review of a decision of the second respondent, the Administrative Review Tribunal (the Tribunal) dated 3 June 2025. The Tribunal decided to set aside a decision of a delegate of the Minister to refuse (pursuant to s 501(1) of the Migration Act 1958 (Cth)) an application for a protection visa.

2    The background facts, briefly stated, are as follows:

(a)    The first respondent (RXJT) is a citizen of Nepal and came to Australia in 2016 on a student visa.

(b)    In December 2022, he was convicted of a serious criminal offence and sentenced to three years’ imprisonment with a non-parole period of 18 months. His student visa was cancelled pursuant to s 501(3A) of the Migration Act in February 2023.

(c)    On 5 April 2023, RXJT was granted parole and transferred from prison to immigration detention.

(d)    On 1 May 2023, RXJT applied for a protection visa.

(e)    On 1 November 2024, a delegate of the Minister made a finding that RXJT is a person in respect of whom Australia has protection obligations (essentially for mental health reasons) (the protection finding). That finding was not (and is not) the subject of review.

(f)    On 11 March 2025, the delegate decided, pursuant to s 501(1) of the Migration Act, to refuse RXJT’s application for a protection visa. RXJT was granted a Bridging (Removal Pending) (subclass 070) visa (BVR) and released from immigration detention.

(g)    RXJT applied to the Tribunal for merits review of the delegate’s decision to refuse the application for a protection visa.

(h)    The Tribunal decided to set aside the delegate’s decision. The Tribunal considered that RXJT should not be refused a protection visa on the basis of s 501(1).

3    The Minister’s application for judicial review is brought by originating application for review of a migration decision dated 8 July 2025. Although that document contains three grounds of review, the Minister does not press ground 3. The first two grounds can be summarised as follows:

(a)    Ground 1: The Minister contends that the Tribunal’s decision is affected by jurisdictional error because the Tribunal acted unreasonably, or otherwise illogically or irrationally, in its consideration of paragraph 9.2 (extent of impediments if removed) of Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110). The Minister contends that, in circumstances where (i) a protection finding had been made in respect of RXJT and therefore he could not be removed to his home country (Nepal) unless one of the circumstances in s 197C(3)(c) applied and (ii) the Tribunal did not made any finding about the circumstances in s 197C(3)(c), it was unreasonable (or otherwise illogical or irrational) for the Tribunal to give heavy weight to the extent of impediments if RXJT were removed to Nepal.

(b)    Ground 2: The Minister contends that the Tribunal misunderstood or misapplied paragraph 8.5 (expectations of the Australian community) of Direction 110 and thereby fell into jurisdictional error. The Minister contends that the Tribunal erred by attempting to infer for itself what the expectations of the Australian community would be in the particular case.

4    The material before the Court includes an Application Book (AB).

5    For the reasons that follow, I have concluded that neither ground is made out.

Applicable provisions

6    I will refer to the provisions of the Migration Act as in force at the time of the Tribunal’s decision (3 June 2025).

7    Section 197C of the Migration Act relevantly provided:

197C    Relevance of Australia’s non-refoulement obligations to removal of unlawful non-citizens under section 198

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

(3)    Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:

(a)    the non-citizen has made a valid application for a protection visa that has been finally determined; and

(b)    in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

(c)    none of the following apply:

(i)    the decision in which the protection finding was made has been quashed or set aside;

(ii)    a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);

(iii)    the non-citizen has asked the Minister, in writing, to be removed to the country. …

8    Section 197D relevantly provided:

197D    Decision that protection finding would no longer be made

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

(a)    the non-citizen is:

(i)    an unlawful non-citizen; or

(ii)    a removal pathway non-citizen covered by paragraph (b), (c) or (d) of the definition of that expression in subsection 5(1); and

(b)    the non-citizen has made a valid application for a protection visa that has been finally determined; and

(c)    in the course of considering the application, a protection finding, within the meaning of subsection 197C(4), (5), (6) or (7), was made for the non-citizen with respect to a country (whether or not the protection visa was refused or was granted and has since been cancelled).

(2)    If the Minister is satisfied that the non-citizen 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.

…

(6)    For the purposes of subparagraph 197C(3)(c)(ii), a decision under subsection (2) of this section is complete if any of the following apply:

(a)    the period within which an application for review of the decision under Part 5 can be made has ended without an application for review having been properly made;

(b)    an application for review of the decision under Part 5 was properly made within the period but has been withdrawn;

(c)    the decision is affirmed (or taken to have been affirmed) on review by the ART.

9    Section 501 relevantly provided:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

…

(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 …

Direction 110

10    Direction 110 was made under s 499 of the Migration Act by the (then) Minister for Immigration, Citizenship and Multicultural Affairs on 7 June 2024. The Direction commenced operation on 21 June 2024.

11    The Direction has two Parts – Part 1 (“Preliminary”) (sections 1 to 5) and Part 2 (“Making a decision”) (sections 6 to 9).

12    Section 4 of the Direction deals with interpretation. The expression “decision-maker” is defined as meaning a delegate of the Minister or a body (such as the Tribunal) making a decision under s 501 or 501CA of the Act. Decision-makers are required to comply with the Direction: see s 499(2A) of the Migration Act and paragraph 5.1(4) of the Direction.

13    Section 5 of the Direction is headed “Preamble” and sets out (in paragraph 5.1) the objectives of the Direction and (in paragraph 5.2) certain principles.

14    Section 6 of the Direction states that, “[informed] by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision”.

15    Section 7 deals with the relevant considerations to be taken account. It provides that the primary consideration at paragraph 8.1 (protection of the Australian community) “is generally to be given greater weight than other primary considerations”. It also states that, otherwise, “primary considerations should generally be given greater weight than the other considerations”.

16    Section 8 deals with primary considerations, which are identified as follows:

(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;

(5)    expectations of the Australian community.

17    For present purposes, it is sufficient to focus on the fifth primary consideration. This is dealt with in paragraph 8.5

8.5.    Expectations of the Australian Community

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2)    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

a)    acts of family violence; or

b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

d)    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

f)    worker exploitation.

(3)    The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community[.]

(4)    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

(Emphasis added.)

18    Section 9 of the Direction deals with “other considerations”. These considerations are identified as including (but not being limited to):

a)    legal consequences of the decision;

b)    extent of impediments if removed;

c)    impact on Australian business interests[.]

19    For present purposes, the second of the above considerations is relevant. That is dealt with in paragraph 9.2:

9.2.    Extent of impediments if removed

(1)    Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)    the non-citizen’s age and health;

b)    whether there are substantial language or cultural barriers; and

c)    any social, medical and/or economic support available to them in that country.

20    I note that paragraph 9.2 of Direction 110 is expressed in hypothetical terms that are not tied to the likelihood or otherwise of the non-citizen being removed to their home country. The paragraph provides that decision-makers “must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country …” (emphasis added). The use of the word “if” conveys that this consideration is concerned with a hypothetical scenario. Paragraph 9.2 does not expressly state that the Tribunal is to calibrate the weight to be given to this “other consideration” depending on the likelihood or otherwise of removal taking place.

RXJT’s contentions in the Tribunal proceeding

21    Each party filed a statement of facts, issues and contentions in the Tribunal proceeding. In RXJT’s statement of facts, issues and contentions, in the section dealing with the legal consequences of the decision, he stated at [78] (AB 356):

Request to return to harm in Nepal

78.    Given how challenging and unsafe the other legal consequences of an affirm decision are for [RXJT], it is conceivable that [RXJT] may opt to return to the risk of serious harm in Nepal.

The Tribunal’s decision

Background

22    The Tribunal set out background matters at [1]-[5] of its reasons for decision. At [2], the Tribunal noted that the protection finding was not under review “and therefore stands” in respect of RXJT. At [3], the Tribunal noted that RXJT had been convicted on 15 December 2022 of a 2 October 2021 offence of “aggravated breaking and entering & commit serious indictable offence – people there – S1” under the Crimes Act 1900 (NSW) (the 2021 Offending). The Tribunal noted that the 2021 Offending was RXJT’s only breach of the law.

23    The balance of the Tribunal’s reasons is structured under the following main headings:

(a)    Consideration ([6]-[13]);

(b)    Primary Considerations ([14]-[42]);

(c)    Other Considerations ([43]-[56]); and

(d)    Conclusion ([57]-[58]).

Consideration

24    At [6], the Tribunal stated that RXJT has mental health issues and a history of substance abuse. This was summarised by adopting a passage from the Minister’s submissions before the Tribunal.

25    At [7], the Tribunal stated that it was agreed, and the Tribunal found, that RXJT did not pass the character test due to the 2021 Offending, pursuant to ss 501(6)(a) and 501(7)(c).

26    At [8], the Tribunal identified the issue to be determined as: “whether the discretion not to grant [RXJT] a visa under s 501(1) should be exercised … having regard to the primary and other considerations contained in Part 2 of [Direction 110]”. The Tribunal quoted at [9] the principles in paragraph 5.2 of the Direction. The Tribunal identified at [10]-[12] the primary considerations and other considerations referred to in the Direction. At [13], the Tribunal referred to the materials that it had considered, namely the documentary material lodged by the parties, the testimony of RXJT and Pastor AE and expert consultant psychologist Mr Tim Watson-Munro.

Primary Considerations

27    In the section on “Primary Considerations”, the Tribunal dealt in turn with each of the five primary considerations referred to in Direction 110.

28    The Tribunal considered the protection of the Australian community at [14]-[34]. The Tribunal described the 2021 Offending in some detail: see [17]-[20]. In broad terms, RXJT went to the victims’ home (the victims were his ex-housemates, one of whom RXJT apparently loved), entered the home through an unlocked door, grabbed a knife from the kitchen, and threatened the female victim while banging on her bedroom door.

29    The Tribunal then observed at [21]-[23]:

21.    A psychological ‘perfect storm’ impacted [RXJT] in the time up to and including the 2021 Offending as the [Minister] has fairly summarised as set out in paragraph 6 above. Such impact was amplified by the isolating effect of Covid-19 lockdowns.

22.    It is clear that [RXJT’s] mental health was a key factor in the 2021 Offending. He has a complex combination of mental health problems including schizophrenia, epilepsy and cannabis use disorder. His epilepsy was diagnosed in 2009 in Nepal when [RXJT] was 13 years old, but his schizophrenia remained undiagnosed until after the 2021 Offending. A misuse of cannabis and alcohol amplified the negative mental impact upon [RXJT] at the time of the 2021 Offending. As the Sentencing Judge stated “I have taken into account, however, the offender’s mental health and agree that he may not be an appropriate vehicle for the full force of general deterrence” but she also recognised the need for specific deterrence “to reinforce the importance of avoiding drug use and complying with treatment for his epilepsy condition”. The Sentencing Judge also noted that:

Dr Matthews is of the view that the offender was suffering from a psychotic episode at the time of the offences with thought form disorder, auditory hallucinations and delusional ideation.

After his arrest, he was assessed by Burwood Court liaison service staff as behaving in a “bizarre and disorganised manner”[.] He was admitted to Concord Hospital under the Mental Health Act where he remained for a number of weeks - first in the high dependency ward (where he continued to experience delusion, ideation and paranoia - attempting to strangulate himself with a cable) and then in the general psychiatric ward for general observation once he began responding to treatment and medication and his condition improved.

23.    Whilst the nature of the 2021 offending was serious, it must be seen in the context of the very poor mental health of [RXJT] at the time of such offending.

(Footnotes omitted.)

30    The Tribunal then considered the risk to the Australian community should RXJT commit further offences or engage in misconduct. The Tribunal stated at [24] that the mental health aspect to the 2021 Offending was relevant “not only to the nature of [RXJT’s] offending but also to the risk to the Australian community, should [RXJT] commit further offending or engage in other serious conduct”. The Tribunal discussed the remarks of the sentencing judge about improvements in RXJT’s mental health, his insight and his remorse: at [25]. That RXJT had shown remorse was accepted by the Minister: at [26]. After further discussion of the evidence, the Tribunal stated on this issue at [33] that, while “the offending itself was serious in nature”, the Tribunal was satisfied in all the circumstances that “there is a low risk of [RXJT] repeating the one off 2021 Offending”. In relation to the protection of the Australian community, the Tribunal concluded at [34] that this consideration “weighs slightly in favour of visa refusal”.

31    In relation to the second primary consideration (family violence), the Tribunal considered this to be neutral: at [35].

32    In relation to the third primary consideration (strength, nature and duration of ties to Australia), the Tribunal considered this to weigh “slightly against visa refusal”: at [38].

33    In relation to the fourth primary consideration (best interests of minor children), the Tribunal considered this to be neutral: at [39].

34    The Tribunal considered the fifth primary consideration at [40]-[42]:

Expectations of the Australian Community

40.    The Australian community expects non-citizens to obey Australian laws while in Australia. That expectation may be informed by conduct overseas by a visa applicant and is so informed in this review application. The expectation is to be considered normatively by reference to the Direction itself. The expectations of the Australian community as a whole are to be considered (the Direction para 8.5(4)). It is not for the Tribunal itself to determine such expectation [footnote: See also FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66]-[67], [91], [101] and [104]].

41.    Such expectation may be tempered by the fact that this matter involves a one-off offence and that as submitted by [RXJT]:

A forensic psychiatric assessment of [RXJT] by Dr Christina Matthews dated 30 March 2022 concluded ‘that [RXJT] would be eligible for the defence of mental impairment or cognitive impairment if this outcome were to be considered by the Court.’ (G21, page 153). [RXJT] pleaded guilty, so this defence was not considered by the District Court. The Australian community, as a norm, do expect however that mental impairment is available as a defence against criminal responsibility - this is reflected by the defence being available in Australian jurisdictions.

42.    The 2021 Offending was serious, but the result of essentially a mental impairment of [RXJT] at the time. The Tribunal finds that this Primary Consideration weighs just slightly in favour of visa refusal.

(One footnote omitted; emphasis added.)

Other Considerations

35    The Tribunal then considered each of the “other considerations” referred to in Direction 110.

36    In the section on the legal consequences of the decision ([43]-[52]), the Tribunal discussed the implications of the protection finding, the effect of the judgment of the High Court of Australia in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 (NZYQ), and the prospect of RXJT being removed to Nauru. In relation to the protection finding, the Tribunal stated at [44]:

The [Minister] accepts the protection finding in favour of [RXJT] (which is not challenged) and accept[s] that his removal to Nepal is not required nor authorised under s 198 of the Act and that the exceptions under s 197C(3)(c) do not presently apply to [RXJT].

37    The Tribunal found that there was “more than a de minimis chance” that RXJT could be removed to Nauru in the future, and that such a chance was “more real than speculative”: at [50]. I note that, by ground 3 of the originating application, the Minister originally challenged these findings as being unreasonable, illogical or irrational. But, as noted above, that ground is no longer pressed.

38    The Tribunal also stated at [51] that a further legal consequence of visa refusal would be that RXJT “will remain on a BVR visa or essentially ‘in limbo’ indefinitely”.

39    In relation to the legal consequences of the decision, the Tribunal concluded that this “weighs against visa refusal”: at [52].

40    The Tribunal considered the second “other consideration” at [53]-[55]:

[Extent] of impediments if removed

53.    Paragraph 9.2 of the Direction require[s] the Tribunal to consider the extent of any impediments that the Applicant may face if removed from Australia to Nepal. There is nothing in that paragraph which suggests such should not be considered where, as here, a protection finding has been made.

54.    The protection finding (which is not challenged) was made on the basis of the ongoing established mental health issues the Applicant has and the distinct lack of social and medical supports which would be available to him in Nepal. He would also be subject to discrimination in Nepal because of his mental health issues. The consequence of removal to Nepal would be these impediments.

55.    The Tribunal finds that this Other Consideration weighs heavily against visa refusal.

(Footnotes omitted.)

41    In relation to the third “other consideration” (impact on Australian business interests), the Tribunal stated that there was no evidence of any impact on Australian business interests. Accordingly, this consideration was given neutral weight.

Tribunal’s conclusion

42    The Tribunal stated at [57] that it had conducted an evaluative exercise of weighing up the considerations to determine whether it was satisfied that the discretion should be exercised to refuse the visa. The Tribunal stated at [58] that, applying its earlier findings and the weights to be accorded to each of the primary and other considerations, the Tribunal was “satisfied that those against the visa refusal outweigh those in favour of visa refusal”. The Tribunal therefore concluded that the visa refusal should be revoked.

Form of the Tribunal’s decision

43    The decision of the Tribunal was expressed in the following terms:

The Tribunal sets aside the decision under review and in substitution decides that the decision refusing to grant the Applicant the visa is revoked.

44    I note that, although not the subject of any ground of review, the Minister was critical of the form of the Tribunal’s decision. The Minister submitted that, rather than revoking the decision to refuse the visa, it would have been appropriate for the Tribunal to remit the matter with a direction that the visa application not be refused under s 501. However, the Minister submitted that nothing turned on this issue in the present application.

Ground 1

45    By ground 1, the Minister contends that the Tribunal’s decision is affected by jurisdictional error because the Tribunal acted unreasonably, or otherwise illogically or irrationally, in its consideration of paragraph 9.2 (extent of impediments if removed) of Direction 110.

46    The Minister’s submissions in support of this ground can be summarised as follows:

(a)    It was irrational for the Tribunal to give any weight, let alone heavy weight, to the impediments RXJT would face in Nepal in circumstances where the Tribunal recognised that RXJT could not be removed to Nepal because of the protection finding.

(b)    The Tribunal was required, by force of paragraph 9.2 of Direction 110 and s 499 of the Migration Act, to consider the extent of impediments faced by RXJT if removed to his home country: see Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; 298 FCR 431 at [55] per Katzmann, Jackson and McEvoy JJ; FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6]-[7] per O’Callaghan and Colvin JJ.

(c)    Importantly, the Tribunal in this case noted (at [2]) that a delegate of the Minister had found that RXJT was a person in respect of whom Australia has protection obligations “pursuant to ss 36(1C) and 36(2)(a)”. That is, RXJT had a “protection finding” in respect of Nepal, as defined under s 197C(5)(a) of the Migration Act.

(d)    The Tribunal also noted that the protection finding “is not under review and therefore stands in respect of [RXJT]” (at [2]). In other words, there was no challenge to the protection finding, such that RXJT’s protection visa application was “finally determined” within the meaning of s 11A of the Migration Act: see s 197C(3)(a) of the Migration Act.

(e)    The effect of a protection finding is that s 198 of the Migration Act “does not require or authorise an officer to remove an unlawful non-citizen” to the country in respect of which the protection finding was made: s 197C(3). With a “protection finding”, RXJT could not be removed to Nepal unless one of the matters in s 197C(3)(c)(i), (ii) or (iii) applied.

(f)    The Tribunal also noted, without casting any doubt on the position, the Minister’s concession that the exceptions under s 197C(3)(c) did not presently apply to the respondent (at [44]).

(g)    Further, when considering the legal consequences of the decision, the Tribunal found that there was “more than a de minimis chance” that RXJT could be removed to Nauru in the future (at [50]) and that a further legal consequence of visa refusal “will be that [RXJT] will remain on a BVR visa or essentially ‘in limbo’ indefinitely” (at [51]).

(h)    It was not rational for the Tribunal to place heavy weight on the impediments RXJT would face in Nepal in circumstances where the Migration Act precluded RXJT from being removed to Nepal. There is no evident and intelligible justification for giving heavy weight to consequences which would not befall RXJT. The Tribunal’s attribution of heavy weight to these impediments was premised on a hypothesis which had no foundation in the reality disclosed by the material before the Tribunal: see, in a different context, PLQF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1483 at [67] per Perram J.

(i)    The unreasonableness or illogicality must result in a conclusion of jurisdictional error. Here, the Tribunal placed heavy weight on consequences which RXJT would not face. This was the only consideration under the Direction which the Tribunal ascribed heavy weight to. Thus, the irrationality plainly infected the entire decision.

47    In his written submissions, the Minister accepts that the Tribunal is required to consider paragraph 9.2 on the assumption that the person is removed to their home country and thus, in this case, the Tribunal was required to consider the extent of impediments that RXJT would face if removed to Nepal. The Minister submits that that is qualitatively different to an assessment of the reasonableness of the weight given to those impediments. The Minister submits that, having considered the impediments, the Tribunal, reasoning within the bounds of rationality and reasonableness, ought to have given those impediments no weight on the basis that RXJT could not be removed to Nepal.

48    Further, in his written submissions, the Minister states that he does not foreclose the possibility that, in an appropriate case, weight could rationally be given to paragraph 9.2 in circumstances where a person has a protection finding. For example, if the Tribunal accepted a submission that there was a realistic possibility that the non-citizen might request that he or she be removed to their home country (s 197C(3)(c)(iii)), then the Tribunal might rationally give weight to those impediments. In those circumstances, removal to the person’s home country despite a protection finding might be a realistic possibility. The Minister submits that, while a submission to that effect was made to the Tribunal in the present case, there is no indication anywhere in the reasons that it was accepted.

49    There is no issue between the parties as to the principles relating to the ground of unreasonableness, illogicality and irrationality in the context of administrative decision-making. These principles have been considered and stated by the High Court of Australia in several recent decisions: see, in particular, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[133] per Crennan and Bell JJ; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [26]-[29] per French CJ, [63]-[72], [76] per Hayne, Kiefel and Bell JJ, [88]-[92], [108]-[109] per Gageler J; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] per Kiefel CJ, [51]-[60] per Gageler J, [89] per Nettle and Gordon JJ, [131]-[135] per Edelman J; Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ. These principles were summarised by the Full Court of this Court (Allsop CJ, Besanko and O’Callaghan JJ) in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [33]-[35].

50    The Minister’s submissions, in some respects, overstate the position. For example, the Minister submits that RXJT “could not be removed to Nepal because of the protection finding” (Minister’s submissions, [15]). However, this is not an accurate statement. As recognised elsewhere in the Minister’s submissions, RXJT could be removed to Nepal despite the protection finding if one of the circumstances in s 197C(3)(c) applied. These include: the Minister making a decision under s 197D(2) and that decision being complete within the meaning of s 197D(6); and RXJT requesting removal to Nepal.

51    For the following reasons, I am not satisfied that it was unreasonable (or irrational or illogical) for the Tribunal to give a heavy weighting to the impediments that RXJT may face if he were returned to Nepal.

52    First, the Tribunal proceeded on the basis of a correct understanding of the legal context. The Tribunal noted at [44] that the Minister accepted the protection finding in favour of RXJT and that his removal to Nepal was not required or authorised under s 198 “and that the exceptions under s 197C(3)(c) do not presently apply to [RXJT]”.

53    Second, although not referred to by the Tribunal, RXJT’s statement of facts, issues and contentions before the Tribunal stated that, given “how challenging and unsafe the other legal consequences of an affirm decision are for [RXJT], it is conceivable that [RXJT] may opt to return to the risk of serious harm in Nepal”. Although the Tribunal did not refer to that statement, its reasons contain several references in the footnotes to RXJT’s statement of facts, issues and contentions, and the Tribunal can be taken to have been aware of the statement. The other legal consequences of an “affirm decision” (i.e. refusal of the visa) included the risk of removal to Nauru, a risk which the Tribunal found to be “more real than speculative” (at [50]).

54    In light of these matters, I am not satisfied that it was unreasonable (or irrational or illogical) for the Tribunal to give a heavy weighting to the extent of the impediments if removed in the circumstances of this case. In particular, RXJT’s statement in his statement of facts, issues and contentions that he may request removal to Nepal in light of the other legal consequences of refusal of the visa (which included, the Tribunal found, the “more real than speculative” risk of removal to Nauru) provided an intelligible basis for the weighting. Putting this another way, in circumstances where it was possible that RXJT may be removed to Nepal, it was not unreasonable to apply a heavy weighting to the extent of the impediments he may face if removed.

55    I note for completeness that RXJT relied in his submissions on BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729 (BKTS). In that case, Perry J upheld a ground of review that it was irrational, illogical or otherwise unreasonable for the Tribunal to reduce the weight to be given to the “other consideration” in paragraph 9.2 in circumstances where the applicant could only be removed to his home country (South Sudan) at his own request: see [60], [62], [68]-[75]. BKTS was decided before NZYQ and the factual findings and the basis of the decision were different from those in the present case. I therefore consider it to be distinguishable.

56    For these reasons, ground 1 is not made out.

Ground 2

57    By ground 2, the Minister contends that the Tribunal misunderstood or misapplied paragraph 8.5 (expectations of the Australian community) of Direction 110 and thereby fell into jurisdictional error.

58    The Minister’s submissions can be summarised as follows:

(a)    The Tribunal plainly considered that the expectations were engaged in this case. The Tribunal did not find, for example, that the general expectation (that where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia) was not applicable because RXJT had not engaged in serious conduct in breach of the expectation.

(b)    As the Tribunal noted at [40], the Tribunal had no role in attempting to assess for itself the content of the expectations of the Australian community in a particular case. That is made clear by paragraph 8.5(4) of the Direction, which states that the consideration “is about the expectations of the Australian community as a whole” and that “decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case”.

(c)    As the High Court said in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 280 CLR 265 at [51], by reference to a cognate paragraph in an earlier Direction, the Direction “does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision-maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate”. Rather, the Direction “is to be understood as directing the decision-maker not to attempt to infer what the expectations of the Australian community would be ‘in the particular case’ (that is, with the knowledge of the delegate about the applicant’s personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)-(3) are the relevant norm described as the expectations of the Australian community” (at [52]).

(d)    However, despite the Tribunal’s acknowledgment at [40], the Tribunal in truth assessed the weight to be given to the expectations of the Australian community on the basis of personal circumstances known to the Tribunal.

(e)    The Tribunal was not permitted to take into account its own view that RXJT’s offending was “the result of essentially a mental impairment” and that the Australian community, as a norm, expects that a defence of mental impairment is available as a defence against criminal responsibility as reflected by the availability of that defence in each jurisdiction in Australia. The Direction itself sets out the deemed expectations of the Australian community, and the Direction says nothing about mental impairment (particularly mental impairment claims which are not established by a Court).

(f)    That is not to say that the Tribunal was not permitted to weigh the expectations of the Australian community as against other factors, including the Tribunal’s assessment of the protection of the Australian community consideration (where the Tribunal took into consideration RXJT’s mental health conditions at the time of the offending). But it was erroneous for the Tribunal to take into account this circumstance of RXJT when considering the expectations of the Australian community consideration when viewed in isolation: see RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 (RCLN) at [56]-[59] per Horan J.

59    In my view, for the reasons that follow, this ground is not made out.

60    It may be accepted that it is not for the decision-maker to make their own assessment about the expectations of the Australian community in the circumstances of the particular case; rather, the decision-maker is to proceed on the basis that the expectations of the Australian community are as set out in the Direction: see paragraph 8.5(4) of Direction 110; FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 (FYBR) at [66]-[67], [74]-[75] per Charlesworth J, [103]-[104] per Stewart J.

61    Nevertheless, it is open to the decision-maker to consider the level of seriousness of the offending in the particular case, and then to assess the weight to be given to the consideration referred to in paragraph 8.5 (expectations of the Australian community) having regard to the level of seriousness of the offending. In FYBR, Stewart J said at [101]:

Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.

(Emphasis added.)

62    The emphasised words in the above passage make clear that it is open to a decision-maker to give more or less weight to this consideration depending on the level of seriousness of the offending. See also FYBR at [102]-[103]; DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; 301 FCR 344 at [57].

63    The relevant passage of the Tribunal’s reasons is at [40]-[42] (set out at [34] above). As the Minister’s submissions acknowledge, the Tribunal correctly stated at [40] that it “is not for the Tribunal itself to determine” the expectations of the Australian community. Thus, the Tribunal’s statement of the applicable principle was correct.

64    The Tribunal’s reasons need to be read fairly and as a whole. In my view, adopting that approach, the Tribunal did not determine for itself what the expectations of the Australian community were in the particular circumstances of this case. Rather, the Tribunal proceeded on the basis that the expectations of the Australian community were as expressed in Direction 110, and assessed the weight to be given to this consideration having regard to the level of seriousness of the offending.

65    It is true that, at [41], the Tribunal quoted a paragraph from RXJT’s statement of facts, issues and contentions in which RXJT (a) referred to a forensic psychiatric assessment that could have supported a mental impairment or cognitive impairment defence and (b) submitted that the Australian community expects that mental impairment is available as a defence. However, and despite the language used by the Tribunal in the opening lines of [41], I would not treat the Tribunal as having made findings about the availability of such a defence in RXJT’s case or about the expectations of the Australian community were such a defence available to RXJT. I consider that the substance of the Tribunal’s reasoning can be seen from the first sentence of [42] of its reasons, in which the Tribunal stated that the “2021 Offending was serious, but the result of essentially a mental impairment of [RXJT] at the time”. That statement reflected findings made in an earlier passage of the Tribunal’s reasons (at [21]-[23], set out at [29] above). In other words, the Tribunal discounted the level of seriousness of RXJT’s offending by reason of his mental impairment. The Tribunal then assessed the weight to be given to this consideration (expectations of the Australian community) having regard to that level of seriousness. The Tribunal’s approach (so understood) was consistent with authority (discussed above).

66    I do not consider there to be any inconsistency between the reasoning set out above and RCLN at [56]-[59], which was cited by the Minister. Indeed, in RCLN, Horan J cited some of the passages from FYBR referred to above.

67    For these reasons, ground 2 is not made out.

Conclusion

68    It follows that the proceeding is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore also make an order that the Minister pay RXJT’s costs of the proceeding, to be determined on a lump sum basis.

Associate:

Dated:    3 February 2026