Federal Court of Australia

Dass v Minister for Immigration and Citizenship [2026] FCA 40

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed with costs.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

OWENS J:

1    The applicant seeks judicial review of a decision of the Administrative Review Tribunal made on 10 September 2025. The applicant applied for review of a decision of a delegate of the Minister not to revoke the mandatory cancellation of his resident return visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth). A decision given by the Administrative Appeals Tribunal was set aside by Burley J in Dass v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 63, and the application was remitted to the Tribunal for re-determination. The present application concerns the decision given upon that remitter.

2    The jurisdiction of this Court to review the Tribunal’s decision is conferred by s 476A of the Migration Act. It is the same particular and limited jurisdiction as that of the High Court under s 75(v) of the Constitution.

3    Although the earlier Tribunal decision, and the basis upon which it was set aside, are not legally relevant to this application, there is a certain rhyming quality to the grounds advanced here, and that which succeeded before Burley J. The critical passage in Burley J’s judgment is found at [42]-[47]:

42    It was in this context that the Tribunal gave its “Overall assessment” of the best interests of minor children at [158], saying that given that the appellant is very close to his two daughters, this consideration weights “very heavily” in favour of revoking the visa cancellation.

43    However, in its conclusions at [170] the Tribunal says that it is not prepared to give the consideration significant weight given that the evidence on the matter is “finely balanced”.

44    The Minister correctly submits that the Tribunal’s reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”, citing Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30] (Brennan CJ, Toohey, McHugh and Gummow JJ). In considering the reasons as a whole, he submits that the Tribunal’s finding at [158] must be understood in the light of its findings at [147] and [154]. This in turn informs the Tribunal’s conclusion at [170] that it was not prepared to give the consideration significant weight because on the evidence about the topic of the best interest of the appellant’s daughters is mixed. He further submits that the Tribunal used two descriptors about the weight of this consideration and that just because something “weighs heavily” it does not logically follow that it must be given “significant weight”. Alternatively, he accepts that the reasoning in [158] is irreconcilable with [170], but that it might be viewed as a slip or mistake and that the correct reasoning of the Tribunal, considered as a whole, is that to be found at [147], [154] and [170].

45    In my respectful view, the reasoning of the Tribunal at [147], [154], [158] and [170] is incoherent. I do not consider that [158] can be reconciled with [170]. The import of [158] is that because the appellant is very close to his two daughters, a consideration of the best interests of minor children in Australia weighs “very heavily” in favour of revoking the visa cancellation. The reasoning in [170] represents an unexplained volte face, the Tribunal stating that it is not prepared to give that factor significant weight. Whilst it is true that at [147] and [154] the Tribunal gave reasons suggesting that in relation to each daughter, their bests interests were finely balanced or mixed, I do not consider that it is appropriate to find that the assessment made in [158] was a slip of the keyboard or an infelicity of expression. In that paragraph the Tribunal gives a reason for its conclusion – namely that the appellant is very close to his two daughters. It cannot be assumed that the reference to weight was anything but deliberate.

46    In the absence of any further reasoning, the conclusion at [170] appears to be capricious. The reader is left guessing whether the Tribunal simply overlooked its finding at [158] or made a mistake in [170] or vice versa. Either way, it is not for this Court to set to one side the clearly expressed conclusion at [158] on the basis that it may be a mistake. In this regard, I consider that appellant’s citation of CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1567; 179 ALD 330 (Wheelahan J) to be apposite:

52.    However, in my view, that is not a fair reading of the Authority’s reasons. I am conscious that the Authority’s reasons should not be construed minutely or with an eye attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). But that does not mean that the reasons should be strained in order to reach an interpretation that would uphold the Authority’s decision: AHX15 v Minister for Immigration and Border Protection [2015] FCA 1183; 68 AAR 98 at [24] (McKerracher J); Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]–[15] (Allsop J).

47    Accordingly, this ground of the appeal should be upheld.

4    Regrettably, the remitted decision, in respect of which this application is brought, also contains inconsistent statements about the Tribunal’s findings. This is the complaint that underlies the applicant’s first ground of review.

5    When the Tribunal considered the “extent of impediments if removed” that would confront the applicant (made mandatory by cl. 9(1)(b) of Direction No. 110 (“Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”), which was made, and made binding, pursuant to s 499 of the Migration Act), it said the following (at [331]-[338]):

331. The Applicant is aged 48. He has a history of high cholesterol and elevated blood sugar levels. He has a history of dental problems. He has a history of substance abuse issues. He also has a history of mental health issues.

332. I accept that the Applicant has few if any family supports to rely upon in Fiji.

333. I accept that he would find readjustment to life in Fiji very difficult.

334. I accept that the Applicant is vulnerable to a deterioration in his mental health if he returns to Fiji and that this may result in him relapsing into drug use.

335. I accept that he may find it difficult to find employment and accommodation.

336. On the other hand, the Applicant has no cultural of linguistic barriers in returning to the place where he spent his first 25 years.

337. The Applicant would be able to access the same social, medical and economic support as any other citizen of Fiji. In saying this I accept that these may well be inferior to the supports available in Australia. I accept that drug treatment programmes may be much less available and/or adequate.

338. This consideration (b) weighs against revocation.

6    When the Tribunal turned to weigh the outcome of the various different considerations in the balance, however, it said this (at [341]-[349]):

341. It is necessary to weigh up all of the primary and other considerations.

342. Primary consideration 1 weighs extremely heavily against revocation.

343. Primary consideration 2 very heavily against revocation

344. Primary consideration 3 weighs moderately in favour of revocation.

345. Primary consideration 4 weighs moderately in favour of revocation.

346. Primary consideration 5 weighs very heavily against revocation

347. Other consideration (a) is neutral.

348. Other consideration (b) weighs in favour of revocation.

349. Other consideration (c) is neutral.

7    It also said (at [357]):

I accept that he would find a return to Fiji, very difficult.

8    The applicant is thus confronted, once again, with internally inconsistent statements about the basis upon which the Tribunal has decided his application.

9    The question is thus whether, as was the case with the incoherence considered by Burley J, the result is jurisdictional error.

10    The Minister accepted, as he really had to, that the statements of conclusions at [338] and [348] were inconsistent. But the Minister submitted that:

20. However it is abundantly clear that read in context, the Tribunal found that consideration 9(b) weighed in favour of revocation; that is, it weighed in favour of the applicant. This is manifest from the number of issues identified by the Tribunal that affect the applicant: his medical condition, including his history of mental health issues and his vulnerability to a deterioration of his mental health as well as possible relapse into drug use; his limited family support in Fiji; and the applicant’s potential difficulty in finding accommodation and employment. The only matters that were not found to militate against him were the lack of cultural or language barriers, and his access to services and economic support available to others in Fiji (though the Tribunal accepted that these, and drug treatment programs, may not be as adequate or widely available as in Australia): [336]-[337].

21. There can be no doubt that the Tribunal considered (despite what is said in [338]) that the matters in 9(b) considered together favoured the applicant, that is, that that factor weighed in favour of revocation. (emphasis included)

11    The Minister also relied on the well-known maxim that an administrative decision-maker’s reasons “are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which reasons are expressed”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 at [31] (Brennan CJ, Toohey, McHugh and Gummow JJ).

12    The question here perhaps reduces, in broad terms, to this: was the Tribunal’s reasoning in substance incoherent, or did an error somehow creep into the written statement of reasons? See, e.g., CRI026 v The Republic of Nauru [2018] HCA 19 at [56]-[57] (Kiefel CJ, Gageler and Nettle JJ); XYJY v Minister for Immigration and Citizenship [2025] FCA 1572 at [64]-[65] (Halley J).

13    Ultimately, I am satisfied that it is clear that the Tribunal’s statement at [338] was an obvious error. That conclusion flows, I think, from the following matters:

(a)    Paragraphs [331] to [335] each accept a submission made on behalf of the applicant in relation to a particular impediment that he would face if he was removed from Australia. The acceptance of those submissions is thus consistent with a finding that the consideration in question weighs in favour of revocation.

(b)    Paragraph [336] begins with the words “On the other hand…”, and is a finding of the absence of one particular impediment that might sometimes be experienced by a person being removed to another country. That finding (at least considered alone) is thus consistent with a finding that the consideration in question weighs against revocation.

(c)    Paragraph [337] records that the applicant would be able to access the same social, medical and economic support as any other citizen of Fiji; but finds that such supports “may well be inferior to the supports available in Australia” and that “drug treatment programmes may be much less available and/or adequate”. That finding, it seems to me, is thus consistent with a finding that the consideration in question weighs in favour of revocation (in the sense that the ultimate conclusion is that the support available to the applicant will be inferior to that which he would have access in Australia).

(d)    Overall, therefore, in paragraphs [331] to [337] the Tribunal accepted the existence of material impediments that would be faced by the applicant if he were removed. The potential impediment that the Tribunal found would not affect the applicant was not one that could be seen as eliminating, overcoming or reducing the others that he would face. There can be no doubt, it seems to me, that the Tribunal determined that the applicant would face a number of substantial impediments if he were removed. Indeed, on its face, the statement of conclusion in [338] is inconsistent with (and could not be sustained by) the reasoning that preceded it.

(e)    That conclusion is reinforced, although I would have reached the same conclusion in any event, by the terms of [357]. That is, it is clear that the Tribunal was operating on the basis that the applicant “would find a return to Fiji, very difficult”.

14    It follows that I accept the Minister’s submission that a fair reading of the Tribunal’s reasons discloses that it found that consideration 9(1)(b) weighed in favour of revocation. As to how the mistake crept into the reasons, it is only possible to speculate. Perhaps the most benign explanation is that it might be easy for a decision maker to conceive of the substance of the question with which they are charged with determining as being whether the applicant’s visa should be “revoked” (as opposed to whether the cancellation of the visa should be revoked). A less flattering explanation is that the Tribunal’s reasons were simply not prepared with the care that they should have been. They contain a number of typographical and other errors that would support such a conclusion. I have not searched the entire decision for errors, but notably the last few pages of critical reasoning contained at least the following errors (in addition to the one contained in [338]):

(a)    At [336], the Tribunal said that “…the Applicant has no cultural of linguistic barriers…” (emphasis added).

(b)    At [340], when stating the Tribunal’s conclusions in relation to the consideration specified in cl. 9(1)(c) of Direction No. 110, the Tribunal said that “This Other Consideration (d) is neutral” (emphasis added).

(c)    At [349], the Tribunal inserted footnote 212 to the text “Other Consideration (c) is neutral”. The text of that footnote simply said: “Find in the above paragraphs.”

(d)    The statement at [351], to which I will turn in a moment, and which is the subject of the applicant’s second ground of review.

15    The extent of those errors does not, however, persuade me that this is one of that “class of case where errors in reasons are so egregious that this is probative of a decision which lacks a logical or rational foundation”: EUD24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1474 at [22] (Logan J). I did not understand such an argument to be put, in any event.

16    For those reasons, the applicant’s first ground of review must fail.

17    His second ground of review fastened on [351] of the Tribunal’s decision:

I note that paragraph 8.1.1(1) of the Direction states that crimes of a sexual nature against a child are viewed very seriously by the Australian Government and the Australian community.

18    That is, on any view, an irrelevant observation for the Tribunal to have made:

(a)    There was no suggestion that the applicant had ever committed any crime of a sexual nature against a child.

(b)    It cannot be explained as a superfluous summary of the terms of Direction No. 110. That had already been done at [194] and following (and in particular at [206] where the terms of cl. 8.1.1(1) were comprehensively summarised). And furthermore paragraph [351] appears in the section headed “Conclusion”, which is where the Tribunal said it was weighing up all of the primary and other considerations that it had in fact previously considered.

19    The applicant submitted that it should thus be inferred that the Tribunal had “been distracted from the applicant’s individual circumstances” and that the reference “infected [the ultimate weighing process] as the Tribunal has failed to demonstrate in its reasons that it was acting on a coherent and consistent understanding of the appellant’s circumstances” (citing, in support of the submissions, ALZ18 v Minister for Immigration and Citizenship [2025] FCA 1035 at [88] (Cheeseman J)).

20    I consider the circumstances of ALZ18 to be quite different to those present here. There really is nothing in the decision at all to suggest that the Tribunal, as a matter of substance, proceeded in any way at all on the wrong assumption that the applicant had committed crimes of a sexual nature against a child, or allowed that consideration to intrude into its reasoning in any way. It follows that it cannot be said that the Tribunal failed to demonstrate a coherent and consistent understanding of the circumstances of the applicant. It is a stray reference that can only be explained, I think, by carelessness:

(a)    It is a curious summary of cl. 8.1.1.(1) in the context of this case because the only category of crime that it mentions as being viewed very seriously by the Government and the community is sexual crimes against children. It does not mention at all, for example, “acts of family violence”, which are also mentioned in cl. 8.1.1.(1) and which were relevant to the applicant.

(b)    Immediately after “noting” that one irrelevant aspect of cl. 8.1.1(1), the Tribunal went on to describe the applicant’s criminal offending. That is to say, at [353] the Tribunal recorded that the applicant “has engaged in acts of family violence over many years, breaching AVO’s in the process”. The applicant’s criminal history had previously been considered at length and in detail earlier in the Tribunal’s reasons.

(c)    In those circumstances, the obvious inference is that the Tribunal meant to “note” that aspect of cl. 8.1.1(1) relating to family violence, and through carelessness somehow (perhaps by copying and pasting the wrong paragraph from a template) referred to a different, and irrelevant, aspect.

21    I just cannot see, however, that the Tribunal, in substance, has taken account of an irrelevant consideration or otherwise allowed its reasoning to miscarry. As such, the applicant’s second ground of review must also fail.

22    In CRI026 v The Republic of Nauru [2018] HCA 19 at [57], Kiefel CJ, Gageler and Nettle JJ said this:

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

23    It is worth elaborating a little on why errors like the ones relied upon by the applicant are unfortunate. An unnecessary doubt about the validity of a decision such as the present might be thought to affect a range of different people, but chief amongst them is the person whose future residence in Australia is at stake.

24    The applicant has resided in Australia for over 23 years. He considers that it is likely that, if he is returned to Fiji, he will be made homeless as he has no family support in that country, and low employment prospects. He has struggled with addiction to drugs, and the removal of his family support here, along with his likely prospects in Fiji, seem to him to augur poorly for his prospects of fighting that addiction. On any view, the decision being made by the Tribunal was of the highest significance to the applicant. It was, by definition, life-changing. The fact that the Tribunal deals with a great many applications of this kind does not diminish even slightly the human impact on each and every individual applicant. Each such applicant is entitled to have their individual application given proper and careful consideration on its own merits by the Tribunal.

25    It is entirely understandable that an applicant, presented with reasons for decision of the Tribunal that contain internal inconsistencies, typographical and other errors or infelicities, might feel as if his or her application had not been treated with the seriousness and care appropriate to the significance of the human impact of the outcome. They may harbour a concern that the Tribunal did not reason rigorously to its ultimate stated conclusion. They may persuade themselves that the Tribunal’s true subjective reasons are not reflected in the construction ultimately given to the decision. I can imagine that many applicants in such a situation would find it difficult to take complete comfort from a decision of a judge that, despite what the Tribunal said, it is plain that it meant something else. The end result is that a stain attaches to the legitimacy of a lawful decision in the eyes of the one person to whom it is most important that it appear flawless.

26    Fundamentally, it seems to me, that is the most important reason why it is unfortunate that unnecessary doubts about the validity of a decision should be created by carelessness. It is not, for example, because of the potential for the generation of expensive and time-consuming litigation (although that is, no doubt, an important reason in itself). It is because there is a human being whose life has been irreparably changed as a result of a decision of the Tribunal, and who may, with some justification, feel that his or her case was not given the attention it deserved.

27    Nevertheless, for the reasons I have given, I consider it to be clear beyond peradventure that the errors upon which the applicant relies are, indeed, simply unfortunate, and regrettable, errors that do not conceal the Tribunal’s true reasoning process, and which do not reveal any jurisdictional error.

28    It follows that the application must be dismissed with costs.

Associate:

Dated:    2 February 2026