Federal Court of Australia

JMNR v Minister for Immigration and Citizenship [2026] FCA 50

ORDERS

THE COURT ORDERS THAT:

1.    The review application is allowed.

2.    The decision of the second respondent dated 17 March 2025 to affirm the decision of the first respondent to refuse to revoke the cancellation of the applicant's Global Special Humanitarian visa is quashed and the matter is remitted for determination according to law.

3.    There be liberty to the applicant to apply as to mandamus.

4.    The first respondent do pay the applicant's costs of and incidental to the review application.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant is a citizen of South Sudan. He arrived in Australia in 1999 as the holder of a Global Special Humanitarian visa. In 2018, his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) after he was sentenced to a term of imprisonment. He made representations seeking the revocation of the cancellation of his visa in the exercise of the power conferred by s 501CA(4). A delegate of the Minister refused to revoke the cancellation. The applicant sought review in the Administrative Review Tribunal. The Tribunal affirmed the delegate's decision. The applicant now seeks to review the Tribunal's decision on the basis of alleged jurisdictional error. An order has been made granting an extension of time for the application to be brought.

2    As matters currently stand, the applicant is unable to be removed to South Sudan. He is the holder of a Bridging (Removal Pending) visa that was issued on the basis that he would otherwise be subject to indefinite detention. At the time of the hearing of his review application in this Court, the applicant was being held in custody pending the hearing of further criminal charges brought against him.

Report of Dr Raeside as to the applicant's mental health

3    Before the Tribunal was a report from Dr Craig Raeside, a forensic psychiatrist. It had been prepared for the purposes of the pending criminal charges. It concerned, the applicant's mental competence and fitness to stand trial on pending charges. At the time of report, the applicant was on antipsychotic medication. In the report, Dr Raeside expressed opinions concerning the state of the applicant's mental health at the time he was alleged to have committed certain criminal offences the subject of those charges. The report also addressed his psychiatric state at the time of report (being 3 January 2025). Those opinions included a statement to the effect that the applicant was, at the time, 'barely fit to plead' and would require 'considerable assistance by his legal counsel and the Court more generally' when it came to the conduct of his defence to the pending charges. The report included the following:

[The applicant] appears to have improved gradually with the reintroduction of antipsychotic medication and abstinence from illicit drugs in custody. He was able to provide an adequate understanding of the role and function of the court and its various officers, albeit influenced by his own views on the charges against him. I believe he would be able to provide adequate instructions to his legal counsel. At a superficial level, he would be able to follow the course of proceedings at court but would likely disagree with some of the objective elements given that his perceptions were adversely influenced by his psychosis at the time of the alleged offending, with him still providing his own account, based on delusional beliefs at the time.

The grounds of review

4    The applicant advances two grounds of review. The first concerns the Tribunal's approach to questions asked of the applicant in circumstances where the applicant may have been entitled to claim the privilege against self-incrimination. It is expressed in the following terms:

The Tribunal failed to accord the Applicant procedural fairness by permitting him to be asked questions in cross-examination which were liable to elicit self-incriminatory answers, without first ensuring that the Applicant understood his entitlement to decline to answer those questions.

5    Significantly, it is not claimed that the applicant was forced to answer incriminatory questions. It is also accepted that he was told of his right to decline to answer such questions. The ground is focussed upon a claim that procedural fairness required the Tribunal to ensure that the applicant understood the nature of the privilege and that, by reason of his mental and cognitive capacity, it was apparent that he did not. In support of the ground, reliance is placed upon the report of Dr Raeside and upon what was said to be evident from the way the applicant gave his evidence to the Tribunal. It was also said that the unfair procedure elicited crucial evidence that was relevant to the Tribunal's findings concerning his actions the subject of the pending charges.

6    In response to the first ground the Minister says that the evidence before the Court does not establish that the applicant did not adequately understand his rights when it came to answering questions that might incriminate. It is said that there has been a failure to adduce any expert evidence in support of the present application. Dr Raeside was not called to provide evidence. In any event, so it is submitted, the report of Dr Raeside, if considered relevant, does not establish the ground. The Minister also relies upon materials before the Tribunal about a psychiatric review of the applicant undertaken during a period when the hearing before the Tribunal had been adjourned. The Minister also relies upon statements made by the applicant to the Tribunal about his mental state.

7    The second ground concerns an alleged irrationality or illogicality in failing to take account of the fact that the applicant would ultimately be released into the community even if his visa was cancelled. It is expressed as follows:

The Tribunal's assessment of the protection of the Australian community was irrational and/or illogical because it failed to account for the fact that, regardless of the outcome of the decision, the Applicant would ultimately be released into the community in any event.

8    In making its decision, the Tribunal was required to comply with Ministerial Direction No 110 made on 7 June 2024 which identified factors that must be considered in deciding whether to exercise the power to revoke the visa cancellation. It was said that the Direction was predicated on the assumption that the decision to be made would determine whether the person would be released into the Australia community. This was said to be particularly so in respect of those aspects of the Direction that were concerned with the protection of the Australian community. Those aspects were said to assume that a decision not to revoke the cancellation of a visa would result in the detention of the person for removal with no prospect of release into the community. However, following the decision by the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137, that ceased to be the case because the High Court there found that indefinite executive detention for the purposes of removal of non-citizens from Australia was unconstitutional. It was contended that, as the applicant had been identified as a person who would be subject to indefinite detention, the reasoning by the Tribunal had to engage with the prospect that he would be in the community even if his Global Special Humanitarian visa was not reinstated. That was because, if his visa remained cancelled, he would be released on a Bridging (Removal Pending) visa and if the cancellation of his Global Special Humanitarian visa was revoked then he would be in the community.

9    The Minister contends that there was nothing illogical or irrational in the Tribunal's reasons and relies upon the reasoning in XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115; (2025) 311 FCR 539.

Outcome

10    I have decided that Ground 1 has not been made out but that Ground 2 should be upheld. On that basis the application should be allowed with costs.

Ground 1: Self-incrimination

11    The Tribunal may deny an unrepresented party procedural fairness if questions are asked 'without warning' into matters about which the privilege against self-incrimination could be invoked: Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 at [37] (Allsop CJ). Where it appears that a question asked of the person may give rise to a legitimate claim of privilege, the Tribunal should 'advise' a person of their right to claim the privilege: SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64 at [74]-[77] (Lander J), [112] (Graham J), [160]-[169] (Rares J), noting that SZHWY was concerned with legal professional privilege, although Lander J also referred to the requirement to advise as applying to questions in respect of which the privilege against self-incrimination may be invoked.

12    In Puohotaua v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1491 at [36], Sarah C Derrington J characterised the warnings that were given by the Tribunal in that instance as 'wholly inadequate' observing that the Tribunal 'made no attempt to explain to [the applicant] the nature or effect of the privilege'. In effect, her Honour concluded that, in substance, warnings were not given. In doing so, her Honour followed views expressed by McDonald J that, in a case where an unrepresented applicant is being questioned, 'the Tribunal should have ensured that it was explained to [the applicant] that he had the right to decline to answer questions on the ground that the answers would tend to incriminate him and that, if he did answer the questions, any admissions against his interests could potentially be used against him' (emphasis added): Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080 at [65]. As was there explained by his Honour, the requirement to explain arose by reason that the applicant was otherwise required to answer questions put to him as part of the process being conducted by the Tribunal. In that context, fairness required that the applicant was informed that he had a right not to answer questions that may incriminate.

13    Ultimately, the decision in Puohotaua turned on whether the answers given were material to the conclusion reached. The review application was dismissed on the basis that there was not a realistic possibility that the Tribunal would have reached a different decision if an appropriate warning had been given: at [42]. Since the decision in this matter was reserved, the Full Court has heard and determined an appeal against the decision. The appeal was dismissed: Puohotaua v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 141; (2025) 311 FCR 472. The reasoning on appeal proceeded on the basis that there had been a failure to warn, so the reasoning does not assist in determining whether Ground 1 is established in the present case: see at [1]-[4] (Charlesworth J), [10] (Downes J, O' Sullivan J agreeing). The conclusion in that case was that there was no denial of procedural fairness because there was no proper basis for the appellant to claim the privilege having regard to the questions he was asked.

14    The law as to the requirements of procedural fairness when it comes to the giving of a warning based upon the common law right to the privilege against self-incrimination have since been considered by Longbottom J in Wardhana v Minister for Immigration and Multicultural Affairs [2025] FCA 1455 at [45]. Respectfully, her Honour's summary of the state of the law reflects that which was before the Court at the time the parties made submissions in these proceedings. In particular, as her Honour stated: '[t]he content of the requirement of procedural fairness is context dependent and must be approached on the basis of what is necessary to avoid practical injustice': at [45(c)].

15    These authorities do not engage with the precise issue raised by Ground 1, which concerns whether the Tribunal must not only provide an explanation of the privilege against self-incrimination but must also be satisfied that the explanation is understood. Indeed, it was suggested during oral submissions for the applicant that what was required was for the Tribunal to invite the applicant to state in his own words what the privilege meant and thereby demonstrate his understanding. As the contents of the requirement for procedural fairness depend upon the context, it is not the case that in every instance where a warning is given the Tribunal must take detailed steps to ensure that the applicant understands the purport of the warning. In particular, it cannot be concluded in a prescriptive way that in every case the Tribunal must invite the applicant to demonstrate their understanding of the warning by expressing that understanding in their own words. No doubt there will be instances where a step of that kind will be prudent in order to ensure procedural fairness. All depends upon the context of the particular case.

The nature of the issue for determination in the present case

16    An applicant for judicial review on the grounds of alleged procedural unfairness bears the onus of proof. In many instances, the onus can be relevantly discharged by establishing the record of the proceedings and no more. However, in the present case, aspects of the submissions invited the Court to conclude that the explanations of the privilege that were provided to the applicant were not understood by him. To the extent that reliance was placed upon an allegation that the applicant, in fact, did not understand the explanations that were given to him then that was a matter on which the applicant bore the onus. Equally, to the extent that the applicant sought to demonstrate, based upon expert opinion, that the applicant's mental state at the time was such that he did not understand then evidence to that effect was required to be adduced on the application for review and that could not be done simply by referring to the contents of documents before the Tribunal that were in evidence as part of the record of events before the Tribunal. In a different case where such evidence was adduced in support of the review application it may be necessary to consider whether procedural unfairness could be demonstrated by evidence of actual misunderstanding. However, for present purposes, the claims advanced in support of Ground 1 fall to be determined on the basis of the record of the proceedings and inferences that can be drawn from the record.

17    Further, to the extent that the submissions were couched in terms that there is a requirement that the Tribunal itself must be satisfied that its explanations were understood, they could not invite an inquiry into the state of mind of the Tribunal. Procedural fairness is concerned with the way in which proceedings have been conducted, not with the subjective understanding or belief on the part of the decision-maker as to whether the reasons for those procedures are properly understood by participants in the proceedings. The procedures are required to be adopted in order to ensure fairness. The nature of what is required is measured by an objective assessment of what is likely to avoid practical injustice in the exercise of decision-making power. Ultimately, the submissions in support of Ground 1 were put on that basis.

18    I accept for present purposes that the Tribunal had to ensure that the explanation of the privilege given to the applicant was given in a way that had due regard to the evident capacity of the applicant to understand the explanation. Further, it must be given in circumstances that allowed the applicant to avail himself of the privilege if he chose to do so. There is no fairness in a procedure which gives a warning which, in the circumstances, when viewed objectively by any reasonable person in the position of the Tribunal duly discharging its responsibilities, is empty of effectiveness as a warning. To take an extreme example, an explanation given to a person who required the assistance of an interpreter to understand the Tribunal proceedings in circumstances where the explanation was not interpreted would not be a fair procedure.

19    Therefore, it seems to me that the issue for determination is whether the explanations of the privilege that were given to the applicant, when viewed objectively in the context of the known circumstances, including what was evident to the Tribunal about the likely ability of the applicant to comprehend the explanation, would effectively communicate both the availability of the privilege and the consequence if incriminating answers are given by the applicant, namely that the answers may be used against the applicant. The matters relied upon by the applicant as known circumstances are the contents of the report from Dr Raeside and the sequence of events as they unfolded before the Tribunal (as evident from the transcript).

Relevant aspects of the report of Dr Raeside

20    As to the report, it indicated a medical history of psychosis that, at the time of the report, was 'recently likely to have evolved into Schizophrenia with relapses and exacerbations caused by illicit drug use with underlying illness'. However, since entering custody there had been gradual improvement such that he would be able to follow the course of criminal proceedings and provide adequate instructions to legal counsel.

21    Significantly for present purposes, the Tribunal hearing occurred some two months later at a time when the applicant was still in prison. As will emerge, there was material before the Tribunal at the time of the hearing from which it may reasonably have been concluded by the Tribunal that the applicant's mental state had improved since the report had been prepared by Dr Raeside.

Relevant aspects of the course of the proceedings before the Tribunal

22    The Tribunal conducted a hearing that commenced on 6 March 2025.

23    At the outset, the Tribunal received a psychiatric report. It appears that it was provided to the Tribunal under cover of a letter from Legal Aid. There is reference to the report being dated 3 February 2025, but that appears to be an error. The only report included in the court book and referred to by the parties was the report of Dr Raeside which, as has been indicated, was dated 3 January 2025.

24    The applicant appeared before the Tribunal without legal representation.

25    Counsel for the Minister provided an opening. The applicant then gave evidence. The Tribunal explained to the applicant that the case was about the cancellation of his Global Special Humanitarian visa because of his past convictions. The applicant began by explaining that he was a victim. He said he was of good character and had played basketball. He referred to his trade certificates in civil engineering and graphic art. He referred to his family in Australia and that the way they have seen him behind bars has 'really broken their heart'. He then referred to his past employment. He disagreed with the things that had been written about him and said that he would never offend again. These were all matters that were expressed in terms that could be followed readily, though, with respect, not with complete fluency of expression.

26    Then, the applicant reached a point where he referred to certain events about his mobile phone. At that point counsel for the Minister interjected and said:

The applicant is talking about pending charges. He's not been found guilty. Before he gives that evidence, I wonder if it might be prudent to remind him, he's not required to incriminate himself, if that is not his wish.

27    The Deputy President then said to the applicant:

You don't have to say anything about those charges, or answer questions about them, if they might tend to show that you've committed those offences. You need to know that this hearing is recorded. People can obtain, while there's a non-publication order over your name, people can obtain a copy of the recording. It could be summonsed, and it could be used as evidence?

28    The transcript records the applicant saying 'yes' at that point.

29    The Deputy President continued:

So you don't need to tell me about those offences however, if you want to tell me, you are able to do so.

30    The applicant then gave evidence that he had been charged. He then said:

And you know this, you know this, you know, repeated, you know, repeated, there are repeated charges that I've been, that I've been brought, you know, toward myself. And you know, it might be like, a lot of them must think that I am from a different - different ethnicity, that I'm the minority in here. And I do, and that really did play a big, you know a big role to why my visa. I mean, I can go on about, you know, telepathic ideas to why, you know why I was not, you know why - why my, my - my visa is always changed, you know, without - without my awareness. I - I am, when, when now, my - my - my visa have changed three times, when I was, when I was in custody in the last, in the last 12 months, my visa have changed three times. And it's a bit unfair.

31    In submissions, counsel for the applicant sought to give some significance to the reference to 'telepathic ideas'. It was suggested it indicated some failure to grasp reality or evidence that, at the time of giving evidence to the Tribunal, the applicant was suffering from delusions of some kind associated with his Schizophrenia. However, considered in context, I am not persuaded that the applicant was doing anything more than detailing the fact that changes were made to his visa status without him being told. The overall course of the evidence at this point does not indicate any basis for concern that the applicant was not aware of the nature of the Tribunal proceedings. Nor does it indicate that he did not comprehend the nature of the proceedings or what the Tribunal had said to him about not having to answer questions that might tend to show that he had committed the charges that he was still facing.

32    The Tribunal then directed the course of the applicant's evidence by asking him about his background and his family. The applicant gave clear and coherent responses to a series of questions the record of which extends over some five pages of transcript. Then he was given an opportunity 'if you want to, to talk about the previous offences you have been convicted of'. The Deputy President said: 'You don't have to tell me more about those, but it is your opportunity if you wish to do so'. The applicant responded: 'I'm happy to tell you, Deputy'. The Deputy President then provided the following further explanation:

So these are not the ones that you have been charged with now. This is what you think has been convicted of in the past?

To which the applicant is recorded as having responded 'Okay'.

33    The applicant then said that he was not the kind of person that the record might say he is. He then said: 'This is, this is my criminal record. This is, these are just things that have been written against me'.

34    The applicant was then asked about his ties to Australia. His answers to those questions were direct and coherent and continue over about four pages of transcript. He was then asked some more detailed questions about his relationship with children in his family that he had mentioned. He gave coherent answers to those questions. After that he was asked about his treatment for drug and alcohol addiction. He gave evidence that included explaining his current medication. The applicant was then asked about whether there was any other rehabilitation. He gave the following answer:

Take a, I - I take church. I started going to church. I start, I believe in Jesus Christ being my - my Lord and my Savior. That, and it is it's true because, you know is, there are other people, like all over the world, you know, might not believe in - in - in reality and that - that you know that I, that I believe that Jesus Christ is my Lord and my Savior.

35    The applicant was then asked about the consequences if his visa remained cancelled. He explained how it would rob him of his adulthood. The Tribunal then made reference to a submission by the Minister that the applicant would be released on a bridging visa on various conditions. He was then asked about the effect on him if he was released into the community on the conditions that had been included in his bridging visa. There was logic to his responses to that part of the questioning by the Tribunal. His answers were quite detailed.

36    After a short adjournment, the applicant was then questioned by counsel for the Minister. He answered questions about the circumstances of his past offending. In the course of doing so, there was the following exchange:

You felt that you were threatened by this old man? - I was - yes, I was threatened by him. I was, you know - I was threatened by the fact that he, you know, maybe - you know, maybe, you know, some - you know, some people, you know, can, you know, can read other people's pain, you know. Maybe he just, you know, read the fact that, like, he has to - you know, sometimes it could be like a political - you know, a political, you know, in the community, you know. It could be, you know - you know, a political issue, you know what I mean, to (indistinct), like, eliminate somebody. You know what I mean? And the reason why you're following me - maybe you follow me, you know, to pretty much, you know, gain - you know, be a narcissist, you know, get me - you know, get me the fight or get me to react, you know. So therefore I'm the one who end up arrested again because a lot of my arrests - a lot of my arrests are based on narcissism.

All right. Just stopping there. I mean, the old man was in his car when you dragged him out of his car. What was so threatening about him driving his car?—I mean, I just thought my mental health at the time, you know, it was not - it was not in the right place. You know, I shouldn't - you know, I shouldn't have - I shouldn't have done that, you know, but he brought that himself. You know, he brought that himself because he upset me. Like I could never - like I could never known what a person is going through, you know, if I didn't upset, you know, that person, you know, or, you know, get their reaction to - that person's reaction.

(emphasis added)

37    In submissions for the applicant, some reliance was placed on the emphasised aspects of this evidence. It may be accepted that the reference to narcissism is difficult to follow. However, considering the evidence as a whole, I do not see any aspect that would cause a reasonable Tribunal member to conclude that there was some issue with the applicant's understanding of the process or the nature of the matters about which he was being questioned. Nor is there any indication that he was suffering from any mental state at the time of the Tribunal hearing where he was disconnected from reality in some way.

38    After a considerable number of questions about his past convictions, there was the following exchange between counsel for the Minister and the applicant:

All right. The next series of questions I have relate to your pending charges. And so I just want to remind you, if you think that your answer will incriminate you or may incriminate you, you can say, 'I refuse to answer it', and I will not press it. Do you understand that?---I understand that, yes.

So I understand you still have criminal proceedings that are still ongoing at the moment. Is that correct?---These are - you know, these are - you know, these are, you know - you know, matters that they try to bring into my attention, you know. Like, I'm not guilty for any of the matters.

39    The applicant then proceeded to answer a number of further questions about matters the subject of pending charges against him. In answering those questions, the applicant said, as to one incident that, at the time, he was seeing things that were not there and he said 'I was seeing shadow'.

40    Significantly for present purposes, the questions were preceded by the statement (already quoted) to the effect that the applicant could refuse to answer a question if he thought it may incriminate him. Having regard to the course of his evidence up until that point, the language that he used and his reference in his first answer to being not guilty of any of the matters (and the context of the earlier statement by the Deputy President about not having to answer questions about those pending charges at all), I find that a reasonable Tribunal member would conclude that the applicant understood at that point that he could refuse to give answers that would indicate he was guilty of the pending charges.

41    Later, before asking further questions about pending charges as to what occurred in relation to two women at a café, counsel for the Minister prefaced the questions by saying: 'And again, you don't have to answer it if you don't want to'. After that, the applicant gave evidence about studying Christianity and that a lot of people believe in the spirit and some people can see the spirit. My assessment of this evidence is that it expressed spiritual beliefs held by the applicant. It did not indicate that he was in some form of deluded state or that he did not understand what was happening, particularly the warnings that he had been given that he did not have to answer the questions about the pending charges.

42    After that, the applicant was asked questions about the report of Dr Raeside. Before asking those questions, counsel for the Minister said:

if you don't want to answer my questions because it might tend to incriminate you, please do not answer it …

43    Later, the applicant was asked questions about how he obtained drugs that he had consumed in the past. After the Deputy President sought clarification of the relevance of the questions, she then provided the following further warning to the applicant:

I'll remind you again that you don't have to answer questions if they might tend to show that you've committed any offence.

44    The applicant then gave the following answer:

Like, yes, I'm currently - like, I'm currently on medication. So I'm currently on a treatment order. And you know, like, I've been treated, you know. And it's something that, you know, I would never go back again to, you know, not being on treatment - not being untreated. So I'm on - the doctors gave me medication, and so I'm taking this medication. I'm feeling a lot more better. So I'm not feeling - I'm not seeing the energy that I used to see around me.

45    When pressed as to who supplied him with the drugs, the applicant said that he bought them from a guy in the street, not from a friend.

46    Later when the questions returned to his consumption of illegal drugs, counsel for the Minister said:

And I remind you again, you don't have to answer these questions if you don't want to, if it might incriminate you, but did you take any other illegal drugs at the time in 2024?

47    The applicant gave coherent responses to a number of further questions. Then, in the course of explaining an event where the applicant said he had broken a glass window in a car, he gave the following evidence:

I was made - I was made to look so bad, but that's also a mess with my mental. And so when I was going home and the car was in my street - and so I smashed the window and took the - there was a camera there, and it says - it says, you know, 'Watch out for camera'. I think I was just upset that I didn't really - you know, I just - I just - I just, like, you know, been watching TV and I see how cameras work, you know. And if somebody don't believe in holy ghosts, then somebody wouldn't know that ghosts really exist. You know, I was - I was just - I did it, yes, as I've said, but it's a small problem that I caused him, you know. It's not a - it's not a big - it's not a big window. It's probably a five-dollar window.

48    Considered in context, I do not consider the reference to belief in holy ghosts to indicate to a reasonable Tribunal member confusion on the part of the applicant as to the nature of the process or to indicate problems with his mental state of a kind that might cast doubt on whether he had understood the warnings that he had been given.

49    The next question was also introduced by counsel for the Minister with a further reminder that the applicant did not have to answer the question if it may tend to incriminate him.

50    The applicant was then asked questions about the circumstances of an incident that occurred while he was being held in immigration detention. He gave responsive answers that addressed the nature of the question. Then he was asked about another incident in detention. The Deputy President interrupted to say (as recorded in transcript):

I remind you again, although [counsel for the Minister] (indistinct) that you're not required to answer any questions for matters that you've not been charged or convicted?

51    The applicant answered 'Yes. He took my phone' and then proceeded to give a detailed account of the incident. He proceeded to provide responses that addressed a series of further questions about the incident.

52    The applicant was then asked about the effects of the medication he was taking and aspects of his treatment. There was the following exchange with the Deputy President (as recorded in transcript):

You said you were on medication. Do you know what your current diagnosis is?---Yes, I am schizophrenic.

Okay. And what's the effect of the medication on your condition, that you're taking now, today?---Yes, the medication I'm, making me feel better. And also, you know my vision, because they're like helping me. Like I don't see shadows anymore.

Is there any other effect of the medication on you?---No ma'am.

Does it affect your ability to understand any of the questions asked of you today?---No, no.

And when was the last time you saw a doctor?---saw a nurse last night. I see a nurse. I see a nurse twice a day. (indistinct).

And when did you last see Dr Raeside?---So Dr Raeside, at January.

And have you seen Dr Raeside since?---No, no ma'am.

Are you aware that that report says that a mental incompetence, Dr Raeside's view is a mental incompetence defence was available to you. And that at that time, he said you were barely fit to plead, in January 2025?---Yes, I'm very fit, I'm very unfit to stand the trial.

Sorry, what was that?---I'm very unfit. I'm very unfit to stand the trial.

Okay. So who says at the moment that you're unfit to stand trial?--- Dr Raeside, Dr Raeside, going. So I asked the court to withdraw my, like on my charges because I'm unfit to withstand the trial. I'm kind of withdrawing the charges. A lot of, a lot of the charges that they, that they'll withdraw them. Charges that I went to court before, incidentally.

53    The Deputy President then indicated to counsel for the Minister that she was concerned about the fact that there was a report saying that 'at that time' (that is, at the time of the events the subject of the pending charges), 'there's a mental incompetence defence and he at that time, was barely fit to plead'. Then the Deputy President said: 'And I'll be asking you whether I can rely on his evidence today, given this report in front of me, which is the most recent one I have'.

54    In response, counsel for the Minister made the following submission:

A couple of things, Dr Raeside's report is the defence's view of the fitness to plead. And as I understand it, Dr Raeside's opinion, in relation to mental incompetence was directed at the events in September 2024, when he was not taking medication, when he was apparently hallucinating and seeing things that weren't there. And the mental incompetence defence is directed at that point in time, when he was effectively having psychosis that was not treated. So if [the applicant] was presenting in the same way today as he was in September 2024, then I wouldn't be cross-examining him at all about any of this, because he would probably be giving answers that are unreliable and incoherent. But however as I understand it now, the applicant is on medication.

55    Counsel also submitted that there was no concession that the defence had been made out and that Dr Raeside's opinion was that the applicant was fit to plead 'although he's on the edges of that'. Finally, counsel submitted:

And if it was your opinion that he's not fit to give evidence in response to my questioning, then respectfully, that's something I can make submissions on, in terms of the weight to be given to it. Otherwise there is a real prospect of a denial of procedural fairness if I rely on submissions and I rely on documentary evidence, and he has had no opportunity to respond to it.

56    The Deputy President indicated that it was a matter that she would like to be further addressed in closing submissions.

57    Counsel for the Minister then commenced asking further questions of the applicant. He began by saying:

I just want to remind you again, you don't have to answer the question I ask of you at the moment, because it is in relation to uncharged conduct.

58    One of the matters addressed by counsel was the effect of the medication being taken by the applicant. On that topic, there was the following exchange:

So you're taking medication at the moment for both psychosis - is it antipsychotics - and also for your anxiety. Is that correct?---Yes. That's correct.

And you feel that it's improved your mental health?---Improved mental health, yes.

And is it by a little bit, or by a lot?---By a lot. Like I don't see, I don't see shadows anymore. I used to see, I used to see shadows, you know, all the time, you know, and you know, people. They were nobody, there'd be nobody in the room, but you know, I would, I would see a shadow and I, and you know, on - on these drugs, like, I don't see them anymore.

So apparently what the medication regime that you are on, does it require you to take a number of pills every day, every 2 days? What's the frequency of that regime?---I take, I take three. I take three pills a day under - under supervision from a nurse or a doctor, normally.

59    The applicant also referred to seeing a psychologist in prison in January 2014 and that he had told the applicant that he was 'getting a lot more better'. Later, there was the following question and answer:

But is it fair to say your mental health today is as good as it's been, that it hasn't been better?---It's, yes, it's better, because I'm a lot more, I'm a lot more calmer. You know like, and I - I know that like, you know sooner or later, you know I'll have to, you know blame somebody, you know for my, for, I have - I have to blame somebody or - or - or if you don't have to ever blame somebody and say that, you know like I - I grew up and - and - and, you know like I - I used to drink alcohol and smoke cigarette, or - or - or drink alcohol and - and you know I - I used to be a person that used to gamble, you know what I mean? Or I used to be a person that used to, yes used to be, used to drink alcohol, you know. This - this I think that just put into my past, that it is. You know, if I drink, I - I drink in moderation. Or I - I - I don't just go and get drunk with anybody that's just in the, in the street.

60    Later, the applicant was asked whether he could give more information about his mental health or a community treatment order. He gave what was a somewhat rambling and non-responsive answer. It included the following:

If that's how things are going to be for me, I'm not going to get any, I'm not going to get any compensation out of this. Because this - this is the reality. At the end of the day, I'm the one who's ruled my life, always come from your threat, you know. And - and - and - and - and if I don't, if I don't go back to, if I don't have to my country, then I have to go - go back to my community. You know I contribute, you know, the right, and the, and the right manner of - of - of doing things. But if I threaten Australia here, then I have to go to school, you know, or go to work here.

61    Prompted, it would seem, by the nature of the answer, counsel then asked:

… at the moment, do you feel like you're able to concentrate and answer questions?

62    The applicant responded:

-I am. I am, yes, able to answer questions.

63    The applicant then continued to make a long statement that was not responsive to any question and in terms that were not as coherent as his answers had been up to that point.

64    At that point the Deputy President intervened and observed that the applicant appeared to be 'somewhat tired and answering questions on a bit of a tangent'. The hearing was adjourned to the following day.

65    The next day, the applicant was asked about whether he had taken his medication. He explained that because he had been brought into the hearing early the day before, it was before the time for taking his medication, so he had not taken it and it had not been given to him when he returned. Also, he had not taken his medication on that day either. He said this was the first time this had occurred in six months. The applicant did say he had a good sleep and was 'not seeing any shadows'. He said that his thoughts were in a good place.

66    Despite these statements, the Tribunal then adjourned to obtain more information about the state of his mental health and his ability to understand and answer questions. The Tribunal then took evidence from a nurse at the health centre at the prison where the applicant had been remanded. The nurse indicated that the applicant's next psychiatric review was scheduled for 11 March 2025 (some four days away).

67    The Tribunal then adjourned the hearing until 12 March 2025.

68    Subsequently, in its reasons, the Tribunal recorded the following observations concerning the course of the evidence of the applicant on the first and second days of the hearing:

The Applicant gave clear evidence during the hearing although was somewhat tangential at times. On the first day after the lunch break he became more tangential and less lucid, and the Tribunal adjourned until the following day. The next day, he reported he had not taken his medication the day before or the morning of the hearing. The Tribunal adjourned and on resuming was able to speak to a nurse at the prison who had access to his medical notes. It was reported he had taken his medication the first day of the hearing but had not taken it on the second day of the hearing.

69    Significantly for present purposes, it was on the first day of the hearing that the applicant was asked about the matters the subject of the pending charges. Although, as has been noted, there was a point at which the Deputy President raised concerns about mental competence, properly understood those concerns were as to the applicant's mental state at the time of his alleged offending, particularly at the time when he said he smashed the small window on the car. The exchanges with the Tribunal and the requests for further submissions did not manifest concern on the part of the Tribunal as to whether the applicant understood the warnings he had been given during the course of the first day of the hearing.

70    The repeated restatement of those warnings by counsel of the Minister and the Tribunal are consistent with the Tribunal proceeding on the basis that those warnings were effective. The concerns raised about the applicant's mental state at the time of the alleged offending do not support the making of a finding to the effect that the objective circumstances as apparent to the Tribunal gave rise to concern on the part of the Tribunal as to understanding of the warnings that were given. When concerns arose as to whether the answers being given were lucid, the first day of the hearing was adjourned.

71    These matters are reflected in the Tribunal's reasons. As to the alleged incident concerning the car window, the Tribunal found: 'After being warned that he did not have to answer questions about this alleged conduct, the Applicant said he did break the window of the car and take a CD' (para 47). However, the Tribunal went on to find that the conduct occurred during a period when the applicant was suffering a relapse of his schizophrenia (para 48).

72    The Tribunal dealt separately with other incidents the subject of pending charges which concerned events alleged to have occurred whilst he was in immigration detention. As to those matters, the Tribunal found that after being warned that he did not have to answer questions about these incidents he gave evidence that he did engage in conduct of the kind alleged (paras 48-49). On that basis the Tribunal found that it agreed that the incidents occurred and this was serious conduct for the purposes of the Direction (para 51).

73    When the hearing resumed on 12 March 2025, the Tribunal received a psychiatric assessment and a letter from the applicant. The Tribunal considered the matters in the assessment. Relevantly for present purposes, it recorded details of what was described as 'medical support and review' conducted by a person designated as 'medical officer' and said:

Very polite and respectful. He remained engaged and cooperative through the review with good eye contact. No psychomotor agitation seen. Speech of normal rhythm, tone and pace. No FTD. Thought content mostly centered on how he felt like he was wronged by the law, staying away from drugs and wanting to continue taking his medications. No delusional content in this review. Not seen responding t internal stimuli.Good insight. No SI, SH or HT.

IMP

Schizophrenia in remission with some potential residual symptoms on a background of substance abuse disorder. Stated wants to comply with medication and to continue abstaining from drugs.

74    The Deputy President asked the applicant whether there was anything he wanted to tell the Tribunal about whether he felt he was able to give evidence. The applicant replied: 'I'm feeling quite well and happy, and I'm very happy to give evidence today'. As to the assessment (which he had been given an opportunity to read), he said: 'It's all true and the questions that the psychiatrist asked me, I've answered them all correctly'.

75    The Tribunal then proceeded and the applicant was asked further questions by counsel for the Minister. Before those questions were asked, there was the following exchange between the Deputy President and the applicant:

Just before you proceed, [counsel for the Minister] - as we said at the previous hearing, you don't have to answer questions that might tend to show that you've committed an offence, like illegal drug use. So you can decline to answer those questions and that's the privilege against self incrimination?---Okay.

Okay?---Yes.

76    The applicant was then asked questions about his drug and alcohol use after his release from immigration detention. He gave clear and coherent answers admitting his drug and alcohol use. His answers are recorded over a number of pages of transcript.

77    After those questions, counsel for the Minister informed the applicant that he was about to move on to another topic. He prefaced the next questions by saying: 'please let me know if you need a break at any stage'. The applicant was then asked about his mental health condition. He explained that he told Dr Raeside that in the past he was 'seeing shadows' and that 'the mental side of things is schizophrenia'. He was also asked about the letter that he had provided to the Tribunal on that day concerning his mental health. He explained that he had been on a different medication when in immigration detention and that he 'used to twitch really heavy on [the medication]' so he stopped taking the medication. He was asked a series of questions about his choices as to taking of medication and taking drugs after he was released from immigration detention and he gave coherent answers.

78    After that he was asked by the Deputy President whether he wanted to take a break and he said that he was happy to continue. He was then asked questions about programmes and counselling that he had undertaken. He was also asked about his likelihood of re-offending and his reasons for those views. He was also asked many questions about his future plans as to accommodation and work in the community in Australia, including his previous employment. As to all of these questions, he gave coherent answers.

79    The applicant was then asked whether there was anything that he felt was inaccurate or wanted to change about the responses he gave at the previous hearing days. He gave an explanation as to why he considered that he became a victim of police. He said that he was not the kind of person that a lot of reports might say about him. In the course of doing so, he made reference to an incident involving a jacket. Counsel for the Minister then said:

Yes. Just so I understand, that jacket incident - and you don't have to answer this, bearing in mind what the Deputy President said about your privilege against self-incrimination. If you don't want to answer, you don't have to?

80    The transcript records the applicant as giving the answer 'Yes'. Counsel then asked a question about the court proceedings concerning that incident, which the applicant answered. There was then the following exchange:

And again, don't answer if this you don't want to, if you feel like your answer may incriminate you or may tend to incriminate you?---Yes.

But on a different hearing date, you answered questions about breaking into a car to take a CD. Do you remember telling the tribunal that?---I remember that, yes.

And do you today confirm that you did break into that car?---Yes. That was wrong of me. Like - I wasn't - I was on drugs, and I wasn't thinking right …

81    The applicant then proceeded to answer in a logical way questions about incidents the subject of the pending court proceedings.

82    After that, the Tribunal received closing submissions from counsel for the Minister. The applicant then made closing submissions on his own behalf. They were presented coherently and dealt with many of the matters that had been the subject of evidence. They would not suggest to a reasonable tribunal member that there was some concern about the applicant's mental state or his ability to understand the proceedings. In particular, viewed objectively, they would not give rise to any concern as to the applicant's ability to understand the warnings that he had been given throughout the hearing.

Conclusion

83    Regard to the course of the hearing as a whole, the manner in which the applicant engaged with the Tribunal and the way in which he answered questions, together with his repeated and consistent willingness to give answers to questions concerning his then pending charges despite the repeated warnings to the effect that he did not have to answer those questions, causes me to conclude that the applicant has failed to establish any objective basis for a concern on the part of the Tribunal as to whether the applicant understood that he could decline to answer those questions. In the absence of any objective basis for such concern and in the absence of any evidence bearing upon the actual understanding of the applicant (assuming for present purposes that such evidence would be relevant), the applicant has failed to establish a factual foundation for his claim. In addition, for reasons I have given, I am not persuaded that there is an obligation in every case where a warning is given for the Tribunal to 'ensure' that the applicant understood the warning by taking steps of the kind submitted, such as requiring an applicant to express in their own words their understanding of the warning. Where, as here, viewed objectively there is no reason for a tribunal member to be in a state of uncertainty as to whether the warning was understood, procedural fairness does not require steps of that kind to be taken. As the authorities establish, the nature of what is required as a matter of procedural fairness will depend upon the particular circumstances.

84    Further, the contents of the report of Dr Raeside do not alter these conclusions. Dr Raeside's report was prepared some months before the Tribunal hearing dates. On the applicant's own account, since the time of the report, he had been taking his medication and his condition had improved considerably. He no longer saw 'shadows'. Most significantly, the medical assessment undertaken between the second and third days of the Tribunal hearing indicated that he was rational and was not suffering from symptoms of schizophrenia. The record of that assessment did not indicate any reason as to why the Tribunal ought to have been concerned that the applicant did not understand the warnings he was given.

85    For those reasons, it has not been demonstrated that there was procedural unfairness of the kind alleged and Ground 1 has not been established.

Ground 2: Release into the community even if the visa remained cancelled

86    The contentions advanced in support of Ground 2 rest upon the proposition that the Tribunal could not reach a rational or logical conclusion in applying those aspects of the Direction that were concerned with the protection of the Australian community without bringing to account the relatively certain prospect that the applicant would be released into the community irrespective of the outcome. That prospect was said to arise because the applicant could not be returned to his place of nationality and there was no suggestion that he might be able to be removed to some other place. Consequently, as he could not be detained indefinitely for the purpose of removal, he would be released into the community (as indeed he had been before being imprisoned pending the resolution of further criminal charges). Indeed, the position of the Minister before the Tribunal was that the prospect of removal of the applicant to some other place could not be taken into account because there was no plan for that to occur and no evidence to support any such prospect. Those submissions were advanced as reasons why the conditions he might face if removed should not be taken into account in deciding whether to revoke the cancellation of his visa.

87    The applicant says that the Tribunal's reasoning was irrational or illogical because it failed to account for the fact that the applicant would be released into the community even if his application for revocation of the cancellation of his Global Special Humanitarian visa was unsuccessful. The terms of his release would be different, but once his imprisonment as part of the criminal law process came to an end, he would be released into the Australian community.

88    In particular, it was said that in applying the Direction, the Tribunal concluded that the protection of the Australian community supported non-revocation of the cancellation of the visa, without addressing how revocation or non-revocation would impact the safety of the community in circumstances where the applicant would be released into the community whatever the outcome (said to be 'the central issue'). It was submitted that the relevant factors in the Direction were predicated on a critical assumption, namely that cancellation of the person's visa would result in his removal from Australia and his detention pending removal. However, in the applicant's particular case, that assumption did not pertain. In those circumstances, what was required as a matter of rationality and logic, so it was submitted, was for consideration to be given to what was likely to occur in relation to the conditions that may apply to his release. It was said that this would have led, amongst other things, to a comparison between the nature of the medical treatment that he would receive if his Global Special Humanitarian visa was reinstated and the extent to which he could access appropriate medical treatment if that were not the case. This was said to be significant because of his mental health and the importance for his ongoing behaviour (including his likelihood of re-offending) of receiving access to appropriate treatment.

89    The position of the Minister was to the effect that the Tribunal's reasons included consideration of the prospect that the applicant would remain in Australia. Therefore, it could not be said that aspect was disregarded. However, as will emerge, that submission did not respond directly to the nature of the review ground which was to the effect that it was unreasonable or illogical to disregard the fact that the applicant would be released into the Australian community on particular conditions when reaching conclusions concerning the protection of the Australian community.

90    Having regard to the precise terms of Ground 2 it is important to differentiate between two aspects of the Tribunal's reasoning. First, the evaluation by the Tribunal as to whether the cancellation of the applicant's Global Special Humanitarian visa would require his removal from Australia and the consequences if he was removed. Second, the evaluation by the Tribunal of the significance, if any, of the likelihood that the applicant would be released into the Australian community even if his Global Special Humanitarian visa was not reinstated.

91    As to the logic of the applicant's analysis, in my view it was not necessarily irrational or illogical to consider the provisions of the Direction on the basis that cancellation of the applicant's Global Special Humanitarian visa would remove his entitlement to stay in Australia thereby requiring his removal, provided the Tribunal also separately and sufficiently brought to account the additional consideration relevant to the applicant, namely that, in all likelihood, he would remain in Australia under different visa arrangements. That is to say, it was not necessary for the Tribunal to bring the first aspect to account when dealing with the primary considerations specified in the Direction provided that at some appropriate point in its reasons it did have regard to the relevance for the conclusions it reached as to those matters of the prospect that the applicant would have to be released into the community because he could not be indefinitely detained and the conditions that would pertain to his release if that occurred.

92    The above distinction has significance for the competing positions of the parties concerning Ground 2. To the extent that the applicant complained about aspects of the Tribunal's reasons that dealt with the consequences of his removal, they could not be said to be legally unreasonable or irrational in circumstances where the statutory consequence of a decision not to revoke the cancellation of his Global Special Humanitarian visa was that he was required to be detained and removed. That consequence remained a possibility. Indeed, it was directed by the Migration Act. Therefore, it was not a prospect that it could be said was unreasonable or illogical for the Tribunal to consider. What may be unreasonable, in my view, was for the Tribunal to reach a conclusion without also considering the further aspect that, in all likelihood, the applicant would not be removed from Australia for the foreseeable future but rather would be released into the community on conditions.

93    Therefore, it is important to consider the reasoning pathway of the Tribunal, especially as to the significance for its decision of the prospect that the applicant would be released into the community for the foreseeable future on conditions that would be different to those that would apply if the cancellation of his Global Special Humanitarian visa was revoked.

The relevant reasoning pathway of the Tribunal

94    The Tribunal considered in some detail the risk to the Australian community (paras 58-75). It did so by reference to the relevant terms of the Direction to which it was required to have regard. The Tribunal concluded that 'there is a moderate to high risk of the Applicant engaging in further criminal or other serious conduct' (para 74). The Tribunal then reached the following overall conclusion on the protection of the Australian community (para 75):

Given the seriousness of the Applicant's offending, the frequency of his offending and the early stages of remission of his mental illness and his choice not to access the support offered by his family I consider the protection of the Australian community weighs heavily in favour of not revoking the cancellation of his visa.

95    Implicit in this conclusion was a view that not revoking the cancellation of the Global Special Humanitarian visa would protect the Australian community from the identified risk of serious conduct. There was no explanation as to how this protection would be afforded. In particular, there was no reasoning that brought to account the likelihood that the applicant would be released into the Australian community because he could not be detained indefinitely.

96    The Tribunal dealt separately with the terms of the Direction that referred to the expectation of the Australian community. It reached the following conclusion as to that aspect (para 94):

The expectation of the community, as expressed in the Direction is that the Applicant's visa will be cancelled. This consideration weighs in favour of not revoking the cancellation.

97    The Tribunal then dealt with the 'legal consequences' of a decision not to revoke the visa cancellation, particularly the prospect of the applicant being released on a Bridging (Removal Pending) visa or BVR (paras 96-100). The BVR was the form of visa that the applicant held at the time of the Tribunal's decision and was the visa that would continue to apply if his Global Special Humanitarian visa was not reinstated.

98    The Tribunal then undertook a consideration of the significance of the legal consequence of the non-revocation of the cancellation of the Global Special Humanitarian visa, namely that he would be the holder of a BVR. It first dealt with the applicant's potential removal and concluded that it was a significant factor that weighed in favour of revoking the cancellation of his visa even though there was an assurance from the Minister that there was no current intention to seek removal to another country (paras 101-107).

99    Significantly for present purposes, the Tribunal then reasoned as follows under the heading 'Subject to BVR conditions', namely:

(1)    the BVR granted to the applicant was not subject to electronic monitoring or a curfew (paras 108-109);

(2)    the BVR granted to the applicant was subject to over 20 conditions, some of which will be onerous and will 'have a different impact on the Applicant to those who do not have a mental illness' (para 110);

(3)    the applicant says that he will be able to comply with the reporting and other conditions on his BVR (para 111); and

(4)    '[t] he legal consequence of the decision to refuse his visa is that the Applicant is subject to a BVR for an indeterminate period' (para 112).

100    The Tribunal then expressed the following conclusion (para 112):

In his circumstances [the indeterminate period of the BVR] is more onerous because of his mental illness and the effect on this illness on this ability to comply with reporting conditions and remaining liable to removal from Australia, and weighs significantly in favour of revoking the cancellation of his visa.

(emphasis added)

101    The Tribunal then considered the applicant's eligibility for services if his visa was cancelled and did so on the basis that he would not be entitled to services such as the NDIS and a disability support pension (para 113). The Tribunal concluded (para 114):

Overall, the legal consequences of the decision weigh significantly in favour of revoking the cancellation of the visa.

102    The Tribunal addressed what would happen if the applicant was removed and reached the following conclusion which reflected its earlier finding that even if his Global Special Humanitarian visa remained cancelled he would remain in Australia indefinitely (para 119):

Therefore, while the Applicant cannot be removed to his home country and there are no imminent plans to remove him to a third country, I consider this possibility to be relevant and to attract some weight in favour of revoking the cancellation of his visa.

103    However, ultimately, under the heading 'Conclusion', the Tribunal reasoned to the result in the following way (paras 122-124):

The protection of the Australian community in this case weighs heavily in favour of not revoking the cancellation of the Applicant's visa. The expectation of the Australian community weighs in favour of not revoking the cancellation.

The Applicant has very substantial ties to Australia with his immediate family and large extended family network in Australia, as well as there being a period on which he contributed to the community mean that his ties to Australia weigh moderately in favour of revoking the cancellation of his visa. The best interests of children weigh marginally in favour or revoking the cancellation of the visa, and the legal consequences weigh significantly in favour of revoking. While the extent of impediments if returned to his home country do not directly apply, in otherwise considering these impediments I consider they weigh somewhat in favour of revoking the cancellation of his visa.

The safety of the Australian community is expressed to be the highest priority of the government, and the Applicant poses a moderate to high risk of engaging in further criminal or other serious conduct. Overall, the protection of the Australian community and the expectations of the community outweigh other considerations that are in favour of revoking the cancellation, and I consider another reason to revoke the cancellation of the visa has not been established.

104    Starkly, there was a failure to bring to account as part of the conclusion the significance of the part of the reasons that recognise that the applicant will remain in Australia on a BVR with possible consequences for his mental health. I accept that engagement with this issue would have required deliberation as to whether the BVR conditions may make the applicant a greater risk to the Australian community than being released as the holder of a Global Special Humanitarian visa. As the applicant submitted, there is a failure to bring this aspect to account in reaching the conclusion concerning the protection of the Australian community. Instead, the Tribunal's conclusion simply picks up the result of the earlier part of the Tribunal's reasons where the protection of the Australian community was considered in the manner provided for by the Direction (the terms of which assume that the consequence of the visa cancellation remaining in place would be removal from Australia).

105    Therefore, although it was possible for the Tribunal to reason in a way that addressed the primary considerations in the Direction and then brought to account the particular circumstances of the applicant in relation to his likely release into the Australia community on a BVR and all that would entail, in fact those matters were not brought to account by the Tribunal in reaching its conclusion. There is no part of the Tribunal's reasons where the consequence of the applicant being in the Australian community on the BVR is considered. Consequently, matters such as the effect on the applicant’s medical treatment and the likelihood of his re-offending of being in the community on a BVR rather than on a Global Special Humanitarian visa are not addressed.

106    It is necessarily implicit in the final paragraph of the Tribunal's reasons that the Tribunal reached its conclusion on the basis that the cancellation of the Global Special Humanitarian visa would mean that the applicant would not be in the Australian community and, consequently, a decision not to revoke the cancellation of the visa would afford protection for the community from any further criminal conduct. There is no suggestion in the reasons how the certain form of protection referred to would be afforded to the Australian community if the applicant was released into the community on a BVR. Importantly, there was no consideration as to whether the conditions of a BVR may increase the risk to the community (compared to revocation of the cancellation of the Global Special Humanitarian visa) because of consequences for the applicant's mental health. This is despite the recognition by the Tribunal that there were onerous aspects to the BVR because of his mental illness.

107    The consequence is that the Tribunal reasoned that the protection of the Australian community weighed heavily in favour of non-revocation but did so on the false premise that non-revocation of the visa cancellation would mean that the applicant would be removed from the Australian community. The Tribunal reached a conclusion based upon a consequence of non-revocation that its own reasons acknowledged would not be the legal consequence of non-revocation (because the applicant would remain in Australia on conditions). Consequently, there was no consideration of how those conditions might affect the validity or logic of the conclusion that non-revocation would be more protective of the Australian community than revocation of the visa cancellation.

The relevant principles as to legal unreasonableness

108    The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power that arises by applying common law principles concerning the interpretation of statutes: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [53] (Gageler J), [80] (Nettle and Gordon JJ), [131] (Edelman J); and Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). The precise content of that which is required must be determined as a matter of statutory construction of the relevant provisions. The required threshold of legal unreasonableness is usually high: DUA16 at [26]. Where reasons have been provided, they are the focal point for assessing whether the decision was unreasonable: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]-[47] (Allsop CJ, Robertson and Mortimer JJ).

109    Legal unreasonableness is concerned with the overall discharge of the decision-making task. 'Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness': Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225 at [85] (Besanko, Banks-Smith and Colvin JJ).

110    Part of that process of determining whether there is legal unreasonableness will involve a consideration of the nature of the repository of the power: SZVFW at [51]-[53] (Gageler J), [84] (Nettle and Gordon JJ), [134]-[135] (Edelman J). In the present case, the decision was made by what was then known as the Administrative Appeals Tribunal, an independent statutory Tribunal whose members were appointed for the expertise in decision-making. The Tribunal was required to provide reasons for its decisions. The Tribunal had a statutory responsibility to conduct a merits review and reach its own conclusion.

111    Broadly speaking, the same approach pertains to claims of alleged jurisdictional error characterised in terms of irrationality and illogicality: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [119] (Crennan and Bell JJ); and Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; (2020) 280 FCR 1 at [23]-[26] (Murphy, O'Callaghan and Anastassiou JJ). Indeed in MQGT v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 141, irrationality and illogicality were described as a dimension of unreasonableness: at [42] (Wheelahan, Jackson and Feutrill JJ). See also, Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 at [43] (Gordon J).

112    The nature of the alleged legal unreasonableness and illogicality in the present case does not concern factual findings. Rather, it is concerned with the fundamental logic of the Tribunal's reasons. The ground of legal unreasonableness will be established where the decision is so lacking a rational or logical foundation that the decision was one that no rational or logical decision-maker could reach: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [34] (Allsop CJ, Besanko and O'Callaghan JJ).

113    Finally, it makes no sense to speak of a category of decision that exceeds the bounds of legal reasonableness but nevertheless is not infected by jurisdictional error because it was unreasonable in an immaterial respect: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [6] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). Therefore, if legal unreasonableness by a decision maker is demonstrated, it is not necessary to demonstrate separately that the legal unreasonableness was of a kind that met the requirement for materiality.

The reasoning in XKTK

114    As I have mentioned, the Minister relies upon the reasoning in XKTK. However, for the following reasons, the decision in that case must be distinguished. XKTK was concerned with a decision made by the Minister to cancel a visa under the national interest power conferred by s 501BA(2). In that case, there was express reference to the legal consequences of the decision being that a decision to cancel the visa would not result in removal of the applicant in light of the decision in NZYQ: see the joint reasons of Stewart and Needham JJ at [71]-[72].

115    Ultimately, the error alleged in that case was described by their Honours in the following terms (at [83]):

As developed in oral argument, the appeal ground has two parts to it both of which are premised on the Minister's acceptance that cancellation of the [visa] would not remove the appellant from the community or from Australia. The first part is that nowhere in his reasons does the Minister explain or justify how cancellation of the appellant's [visa] could serve the purpose of protecting the Australian community. The second is that nowhere in his reasons does the Minister explain or justify how cancellation of the appellant's [visa] could serve to meet the community's expectation that a person in the position of the appellant should not be allowed to remain in Australia.

116    Their Honours summarised the principles to be applied in considering whether there was jurisdictional error on the basis of legal unreasonableness or irrationality (in the sense that the reasons lack an intelligible justification) in terms that I do not understand to be in issue in the present case: at [87]-[94]. They then reasoned that there was no jurisdictional error of the kind alleged. The key passage is at [114]-[115] which was as follows:

Although the Minister's reasons in the present case are open to the criticism that they do not explain how or why the considerations of the expectation of the Australian community and protection of the community support non-revocation in circumstances where the appellant would continue to reside in the community, it cannot be inferred that the Minister was unaware that that would be the result - that understanding was made explicit, albeit in another part of the reasons. Also, reading the reasons as a whole and not with an eye finely attuned for error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272), it cannot be inferred from the Minister's use of the terminology of 'type of visa' that he was unaware that the appellant would reside in Australia under a BVR - it was the conditions to be attached to the BVR that still had to be decided; in that sense, it was the 'type' of BVR on which the Minister was to be advised by the Department. Also, as explained, a BVR is a visa for removal from the country and offers some protection to the community, matters which it cannot be inferred that the Minister was unaware of. On that basis, there was no irrationality or unreasonableness in the relevant sense in the Minister's reasoning with reference to community expectations and protection.

Although Plaintiff S22/2025 does not establish any new principle that governs the present case, the Court's reasoning to a conclusion in respect of circumstances not materially different from the circumstances of the present case demonstrate the proper path to a conclusion in the present case. None of the various grounds for distinguishing Plaintiff S22/2025 relied on by the appellant is material. Ultimately, the reasoning in Plaintiff S22/2025 governs the outcome in this case.

117    That is to say, contrary to the position in the present case, their Honours found that there was not an absence of reasoning of the kind alleged as the foundation for the claim of legal unreasonableness.

118    Likewise, in separate reasons, Wheelahan J found it to be significant that the Minister, having found that the past offending of the applicant was serious and the prospect of repetition of that offending, albeit low, was unacceptable, also recognised that there was presently no prospect of removal of the applicant and the decision was made in a way that brought that prospect to account.

119    For reasons I have given, the same cannot be said of the reasons given by the Tribunal in the present case.

120    It is also necessary to consider Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36 upon which reliance was placed by Stewart and Needham JJ and to which reference was made by Wheelahan J in XKTK. In that case, there was an unreasonableness challenge to a decision made by a delegate of the Minister not to revoke the cancellation of the plaintiff's visa. As in the present case, the decision-maker was required to give effect to the Direction. There was a ground of review that focussed upon the delegate's reasoning that concerned the way in which the decision dealt with the expectations of the Australian community as expressed in the Direction. It is well established that those aspects of the Direction express a societal norm that is to be taken into account in deciding whether to revoke the cancellation of a visa in the exercise of the power conferred by s 501CA(4) of the Migration Act that where a person has engaged in serious misconduct the Australian community would expect that the person should not be granted or continue to hold a visa. Like the applicant in the present case, the plaintiff in Plaintiff S22/2025 was a person who was unlikely to be able to be removed from Australia for the foreseeable future. Consequently, if their visa was not reinstated, they would be released into the community on a different visa with particular conditions.

121    As to the societal norm, the delegate reasoned as follows (quoted at [23]):

I have proceeded on the basis that the Australian community's general expectations about non-citizens, as articulated in the Direction, apply in this case. I have attributed this consideration significant weight against revocation of the cancellation of [the plaintiff's] visa.

122    Relevantly for present purposes, the plaintiff contended that the delegate's reasoning misapplied the relevant provision of the Direction because the reasoning was internally inconsistent with other reasoning by the delegate that 'the plaintiff would be granted another visa permitting the plaintiff to reside in the Australian community for so long as there was no real prospect of removal of him from Australia becoming practicable in the reasonably foreseeable future': at [24].

123    Their Honours rejected the review ground on the basis that the delegate complied with the obligation imposed by the relevant provision of the Direction. It was found that the relevant provision in the Direction was referring to expectations concerning whether the person concerned should be allowed to continue to hold the visa that had been cancelled. Consequently, it had not been shown that the delegate did not comply with the requirements of the Direction.

124    The case advanced by the applicant in the present proceedings is materially different. It is not concerned with whether there has been compliance with the requirements of the Direction concerning the risks of re-offending. Rather, it is concerned with whether the Tribunal's reasoning is unreasonable or illogical in a respect that affects the validity of the overall discharge of the Tribunal's decision-making responsibility. Further, it is concerned not with the societal norm but with the reasoning as to the protection of the Australian community from the risks of re-offending. It complains that reasoning to the effect that the safety of the Australian community will be maintained by the non-revocation of the visa cancellation because the applicant will not be in the community does not make sense when the Tribunal also reasons in another part of its decision on the basis that he will be released into the community on a visa with particular conditions that may bring an increased prospect of re-offending due to their consequences for his access to medical treatment.

125    In my view, the present case is more like that considered by Perram J in SSVJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 954. In that case, the Minister had given reasons for exercising the power conferred by s 501BA to override a decision made by a tribunal to revoke the cancellation of a visa. The review ground in that case focussed upon the Minister's reasoning to the effect that cancellation of the visa was in the national interest by reason of the need to protect the community and by reason of the expectations of the Australian community: at [9]. Review was sought on the basis of unreasonableness and illogicality. Perram J explained the foundation for the review ground in the following way at [15]-[17]:

There is an obscurity in the Minister's reasons. When considering what the legal consequences of the cancellation decision would be if the applicant's visa was cancelled the Minister accepted that he was a member of the NZYQ cohort and that he would remain in the community even if the visa was cancelled ('I am aware that if a cancellation decision is made under s 501BA, [the applicant] will not be taken into detention. He will continue to reside in the community': [74]).

On the other hand, when assessing the need to protect the community at [17]-[49] the Minister proceeded on the assumption that the effect of any decision to cancel the visa would be that he no longer posed a threat to the community ('... I consider that the need to protect the Australian community from criminal or other serious conduct weighs heavily in support of cancellation in this case in the national interest': [49]).

The Minister's reasons do not explain why it is that the cancellation of the applicant's visa would protect the Australian community from the possibility of his further criminal behaviour. Rather than explaining why this protective effect arose, the Minister's reasons merely assume that there was such a protective effect. The presence of this unexplained assumption appears at a number of junctures in the Minister's reasons.

(original emphasis)

126    In upholding the review application, Perram J found at [20]-[21]:

The Minister's process of reasoning depends for its efficacy upon the unstated assumption that the effect of the visa cancellation was that the community would be protected from the applicant's criminal behaviour and that its expectations in that regard would be met. From the Minister's reasons it is impossible to discern why the Minister thought that cancelling the applicant's visa would have any impact on the protection of the community when, as the Minister accepted, NZYQ meant that the applicant would remain at large even if his visa was cancelled.

As such the decision lacks an intelligible justification.

127    As was explained by Wheelahan J in XKTK at [52], SSVJ was a case that proceeded on similar but not identical evidentiary foundations where a different conclusion was reached upholding the claim of jurisdictional error made in the particular circumstances of that case. I do not read anything in XKTK as concluding that the reasoning in SSVJ was in error. In any event, as I have explained, the material point is that the present case is different from XKTK.

Conclusion

128    Accordingly, in my view the nature of the review ground advanced in this case is to be distinguished from those advanced in XKTK and Plaintiff S22/2025. Consequently, those cases do not address the particular issues raised by Ground 2 of the present application. The foundation for the alleged error has been established. It concerns a key part of the basis for the conclusion reached by the Tribunal. It follows, in my view, that there is unreasonableness and illogicality in the Tribunal's reasoning of a kind that infects the legality of the whole decision. Accordingly, I uphold ground 2.

Orders

129    For reasons I have given, the review application should be allowed. The decision of the Tribunal should be quashed and the matter should be remitted for determination according to law. The effect of that order is that there will need to be a fresh hearing and decision by the Tribunal. The applicant also sought mandamus. There is no reason to expect that there would not be a prompt redetermination. However, I will reserve liberty to apply in relation to that aspect of the review application. The applicant having been successful there should be an order that the Minister pay the costs of and incidental to the application.

Associate:

Dated:    6 February 2026