Federal Court of Australia

TSXN v Minister for Immigration and Citizenship [2026] FCA 205

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

2.    The further amended application is allowed.

3.    A writ of certiorari issue quashing the decision of the Second Respondent dated 5 March 2025.

4.    A writ of mandamus issue directed to the Second Respondent, requiring it to consider the Applicant’s review application according to law.

5.    The First Respondent pay the Applicant’s costs to be agreed or, failing agreement, to be taxed.

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

Note:    On 6 March 2026 at 10.20 am, Order 2.: “The further amended application is allowed” was inserted to these orders pursuant to Rule 39.05(h) of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HESPE J

Introduction

1    The applicant seeks judicial review of a decision made by the Administrative Review Tribunal to affirm a decision of a delegate of the then Minister for Home Affairs made under s 501(1) of the Migration Act 1958 (Cth) to refuse to grant him a Protection (Class XA) (subclass 866) visa. The reasons for the Tribunal’s decision (TR) are: TSXN v Minister for Immigration and Multicultural Affairs [2025] ARTA 329.

2    By a further amended originating application, the applicant raises five grounds of review:

(1)    That there was a denial of procedural fairness by the Tribunal in accepting into evidence the Minister’s supplementary ‘G documents’ provided pursuant to s 501G of the Migration Act and proceeding with the hearing, when these supplementary documents were provided to the applicant only shortly before the commencement of the hearing (ground 1).

(2)    That there was a denial of procedural fairness by the Tribunal in permitting the applicant to use an interpreter at the hearing and then drawing an adverse inference in its reasons from the applicant’s use of the interpreter at the hearing (ground 2).

(3)    That the Tribunal committed jurisdictional error by declining to find that “the applicant’s relationship with his father was repaired … on the basis that the applicant did not call his father to give evidence”. This is said to be irrational (and legally unreasonable) and to fail to consider a relevant consideration in circumstances where the Tribunal had other evidence before it that the relationship was repaired, and where evidence was given (which had not been contested) that the applicant’s father has dementia (ground 3).

(4)    That the Tribunal misapplied a mandatory relevant consideration in ‘Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ relating to the protection of the Australian community and the risk posed by the applicant in the event of his visa application being refused, in the context of the applicant being affected by the decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137 (ground 4).

(5)    That the Tribunal applied itself to the wrong question, namely whether there was “another reason” pursuant to s 501CA(4)(b)(ii) of the Migration Act to revoke an original decision to cancel the visa, rather than whether to exercise the discretion in s 501(1) to refuse to grant the visa, and it thereby constructively failed to exercise its jurisdiction (ground 5). At numerous points throughout the Tribunal’s reasons for its decision, the Tribunal referred to the decision under review as though it was a decision not to revoke the cancellation of the applicant’s visa (see TR [189], [207], [211], [232], [243], [251], [292], [303]–[308] and [319]) when the decision under review was in fact a refusal to grant the visa to the applicant.

3    The Minister did not take issue with the applicant relying on the further amended application. By the close of hearing, the applicant no longer sought to press ground 4.

4    For the following reasons, the applicant succeeds on ground 5.

Background

5    The applicant is a citizen of Myanmar, from the Chin state, who arrived in Australia in July 2010 at the age of 21 as the holder of a Refugee and Humanitarian (Class XB) visa (refugee visa).

6    On 9 September 2011, the applicant was convicted in the County Court of Victoria (following guilty pleas) of a charge of raping his then stepmother, with additional convictions recorded for other charges, leading to a total effective sentence of six years and two months’ imprisonment being imposed. The applicant had also been convicted in December 2010 for contraventions of an intervention order, assault with a weapon and threats made in relation to his father.

7    On 11 March 2015, the applicant’s refugee visa was mandatorily cancelled under s 501(3A) of the Migration Act on character grounds. The applicant then sought the revocation of this cancellation decision, which was unsuccessful, and the non-revocation decision was challenged numerous times (including successfully before this Court) before the applicant’s review proceedings in relation to the non-revocation of the cancellation of his refugee visa were ultimately withdrawn in March 2021.

8    On 27 August 2018, the applicant lodged his application for the Protection (Class XA) (subclass 866) visa. This application was considered and first refused by a delegate of the Minister. That refusal decision was the subject of merits review by the then Administrative Appeals Tribunal. On 4 November 2021, the Administrative Appeals Tribunal remitted the applicant’s visa application to the Minister for reconsideration, with a direction that the applicant is a refugee within the meaning of s 5H(1) of the Migration Act.

9    A delegate of the Minister reconsidering the visa application refused it for a second time on 8 March 2023 on the basis that the applicant failed to satisfy the criterion in s 36(1C) of the Migration Act. This decision was then reviewed by the Administrative Appeals Tribunal and was set aside on 20 October 2023, with written reasons provided on 1 November 2023, the visa application being remitted to the Minister for reconsideration with a further direction that the applicant “is not a person whom the [Minister] considers, on reasonable grounds, having been convicted by a final judgment of a particular serious crime, is a danger to the Australian community”: TR [132]. The Tribunal in the present matter considered this to be a different issue from the one before it (at TR [132]); a conclusion that was not disputed before this Court.

10    On 12 December 2024, a delegate of the Minister decided to refuse to grant the applicant the visa under s 501(1) of the Migration Act. The delegate was not satisfied that the applicant passed the ‘character test’ in s 501(6) and exercised the discretion to refuse to grant the visa (the delegate’s decision). The delegate was not satisfied that the applicant passed the character test in s 501(6)(a) read with s 501(7)(d) of the Migration Act, by virtue of the fact that the applicant has a ‘substantial criminal record’ because he has been sentenced to a term of imprisonment of 12 months or more. The delegate refused to grant the visa having regard to the considerations in Direction 110.

11    Also on 12 December 2024, the applicant was released from immigration detention and was granted a bridging visa, based on an assessment that there was no real prospect of his removal to his country of origin becoming practicable in the reasonably foreseeable future and that there were (at that time) no other countries to which he could be removed. The bridging visa is subject to various conditions: TR [144].

12    On 20 December 2024, the applicant applied to the Tribunal for merits review of the delegate’s decision.

13    The Tribunal hearing ran over 24, 25 and 28 February 2025, and the applicant was represented and assisted by an interpreter throughout.

14    On 5 March 2025, the Tribunal decided to affirm the delegate’s decision, with its written reasons provided the same day.

Tribunal Reasons

15    It was not in dispute before the Tribunal that the applicant did not pass the character test in s 501(6) of the Migration Act. The only issue for the Tribunal was whether the discretion to refuse to grant the visa pursuant to s 501(1) of the Migration Act should be exercised: TR [3].

16    In making its decision, the Tribunal was required to comply with any written directions made by the Minister concerning the performance of its functions or exercise of its powers under the Migration Act: s 499(2A) of the Migration Act. As the Tribunal acknowledged at TR [3], the applicable direction at the time of the Tribunal’s decision was Direction 110.

17    The Tribunal recorded its observations on the applicant as a witness. The Tribunal concluded that it had “formed the strong view that the Applicant’s evidence to the Tribunal was unreliable”: TR [15]. The Tribunal was not prepared to make any uncorroborated assumptions in his favour: TR [17].

18    The Tribunal considered that because the Applicant had elected to use an interpreter, the Tribunal was unable to form a meaningful view of the applicant’s command of the English language and therefore had “no way of assessing whether the Applicant would have comprehended the content of any of the rehabilitation courses that he has completed” which courses were conducted in English: TR [16].

19    The Tribunal recorded that two of the applicant’s sisters gave evidence orally before the Tribunal as well as written statements: TR [19]–[20]. The applicant’s father was not called to give oral evidence but had written a letter dated 31 July 2023, as well as a joint statement with other family and community members dated 9 September 2020, which were before the Tribunal: TR [21], fn9.

20    The Tribunal was not satisfied about the then-present status of the applicant’s relationship with his father. The Tribunal attached little weight to the applicant’s assurances that the relationship had been repaired (since the time of the applicant’s offending): TR [24]. The Tribunal appeared not to attach weight to the observations of the applicant’s sisters in relation to that issue because they “were very reluctant to answer questions about their father”: TR [24].

21    The Tribunal considered the applicant’s relationship with his father to be a “critical relationship” as the applicant relied upon that relationship as one of his protective supports, though the Tribunal considered the relationship had a very volatile past: TR [25]. The Tribunal considered at TR [26] and [27] that:

It would have greatly assisted the Tribunal in assessing the risk of the Applicant abusing alcohol or offending again, if his father could have been questioned about many things. This includes, but is not limited to, his current attitude to the Applicant, his offending history, his history of alcohol abuse, his mental state and his current needs in terms of support and assistance. The prospect of further family violence being committed, could also have been explored.

It would have been very easy to have called the Applicant’s father, indeed he attended at the Tribunal to observe final addresses on 28 February 2025. When the Applicant was asked why his father was not called, he was unable to offer any explanation. He said that he didn't know that his father could be called. This is an unconvincing explanation, especially given that he did not have any trouble calling his sisters. Even without drawing an adverse inference that the Applicant’s father, if called, would not have assisted his case, there is an inadequately explained gap in the Applicant’s case. Given the Applicant’s lack of credibility, this absence of important evidence, cannot be simply presumed to constitute evidence in support of his claims.

22    The Tribunal acknowledged that even if the applicant were not granted the protection visa, the applicant was then (and remains currently) in the community on a bridging visa: TR [28].

23    The Tribunal set out the background facts in much detail at TR [29]–[151], including extracting large portions of the documentary evidence before the Tribunal.

24    The Tribunal noted that the applicant had been unable to explain why the applicant’s frustration with his father would lead to an unprovoked attack on the applicant’s stepmother and that this lack of explanation for the applicant’s offending “goes to the difficult task of assessing the risk of future offending”: TR [52]. There was also no evidence that the applicant had completed the treatment recommended by a clinical psychologist who assessed him in 2011: TR [52].

25    Under a heading “Is there another reason why the original decision should be revoked under section 501CA(4)?”, the Tribunal records at TR [154] and [155]:

In considering whether to the [sic] original decision should be revoked, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501 CA (“the Direction”) has application.

For the purposes of deciding whether to refuse a non-citizen’s visa application, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.

(Footnotes omitted.)

26    Having set out the principles in para 5.2 of Direction 110, and listing the considerations identified in the Direction, the Tribunal proceeded to consider each of those considerations.

27    In relation to Primary Consideration 1 – “Protection of the Australian community” and the direction to consider the “nature and seriousness of the non-citizen’s conduct to date”, the Tribunal considered each of the factors set out in para 8.1.1(1) of Direction 110 in so far as they were considered relevant to the present case (at TR [166]–[188]). The Tribunal concluded (at TR [189]):

I do not consider factors (h) and (i) of paragraph 8.1.1 (1) of the Direction apply to the Applicant's offending or circumstances. The rest of the relevant subparagraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant's visa.

28    The Tribunal considered under Primary Consideration 1 “the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”. The Tribunal recorded that para 8.1.2(2) of Direction 110 provided for three matters that a decision maker must have regard to in assessing the risk, “cumulatively”, being those under paras 8.1.2(2)(a), (b) and (c) of Direction 110. The Tribunal listed each of these as follows (at TR [191]):

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

(i) information and evidence on the risk of the non-citizen reoffending; and

(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and

c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

29    The Tribunal addressed the consideration in para 8.1.2(2)(a), concluding that the applicant’s offending was very serious and that the applicant has been involved in family violence, breaches of protection orders and the rape of his stepmother: TR [193]–[194].

30    The Tribunal addressed the consideration in para 8.1.2(2)(b), concluding that the applicant presented at least a moderate risk of re-offending: TR [205].

31    The Tribunal did not address or further refer to para 8.1.2(2)(c) in its reasons.

32    The Tribunal concluded (at TR [207]) in relation to Primary Consideration 1 that:

Primary consideration number one weighs very heavily against revocation of the Applicant’s visa cancellation.

33    In relation to Primary Consideration 2 – “Family Violence”, the Tribunal considered that the applicant had committed extremely serious acts of family violence and was not satisfied that the applicant had undertaken adequate rehabilitation treatment: TR [209]–[210]. The Tribunal concluded at TR [211] that:

This consideration weighs very heavily against revocation of the cancellation of the Applicant’s visa.

34    In relation to Primary Consideration 3 – “Ties to Australia”, the Tribunal recorded that para 8.3 of Direction 110 provides (at TR [213]–[216] (formatting as appearing in the reasons with italicised emphasis added)):

(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) how long the non-citizen ·has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.     more weight should be given to time the non-citizen has spent contributing positively to the Australian community

b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

35    The Tribunal considered the applicant’s family ties to Australia, including his father, two sisters, four nephews, cousins, uncles and aunts: TR [217]–[220]. The Tribunal also considered the applicant’s connection with the Chin community in Melbourne (TR [221]), the fact that the applicant spent none of his formative years in Australia (TR [223]), that his offending began within a few months of arrival (TR [224]) and that he has made “virtually no positive contribution since his arrival here” (TR [225]–[226]). The Tribunal concluded (at TR [227]):

Although the Applicant is close at least to his immediate family, his years in prison/detention, his commission of crimes so soon after arriving here and his lack of positive contributions to the community, weigh heavily against him.

36    The Tribunal considered at TR [229]–[230] that (emphasis in original, footnotes omitted):

The Direction requires the Tribunal to consider any impact of the decision on the Applicant’s Australian ties. As mentioned earlier, the Applicant’s presence in the community will not be immediately determined by the outcome of this matter.

If the Applicant were to be granted the Protection Visa and he did not resume drug/ alcohol abuse, it would be in the best interests of his Australian ties, particularly his immediate family, for him to remain here. His ties would probably feel more secure about his ability to remain in Australia. This would be a positive from their perspective.

37    The Tribunal concluded in relation to Primary Consideration 3 that (at TR [232]):

This consideration weighs at best slightly in favour [sic] revocation of the cancellation of the Applicant’s visa.

38    The Tribunal recorded the factors required to be taken into account in considering Primary Consideration 4 – “The best interests of minor children in Australia” (TR [233]–[234]) and concluded by reference to the applicant’s four nephews aged under 18 (at TR [240]–[242]):

If the Applicant were to be granted the Protection Visa and he did not resume drug/ alcohol abuse, I accept that it would be in the best interests of the boys for him to remain here.

If the decision is favourable to the Applicant, it may be that the boys feel more secure about their uncle’s ability to remain in Australia. This would be a positive from their perspective.

If the decision was not to grant the Protection Visa, the Applicant will not face detention or removal in the foreseeable future, but his removal to another country would remain a possibility. I accept that this would be a negative from the boy’s [sic] perspective.

39    In relation to Primary Consideration 4, the Tribunal concluded at TR [243] that:

Having regard to all of the above, primary consideration 4 weighs slightly in favour of revocation of the Applicant’s visa cancellation.

40    The Tribunal summarised para 8.5 of Direction 110 in relation to Primary Consideration 5 – “The Expectations of The Australian Community” and concluded at TR [251] that:

Primary consideration 5 weighs very heavily against revocation of the cancellation of the Applicant’s visa.

41    The Tribunal considered the Other Considerations set out in para 9 of Direction 110, beginning with (a) the “legal consequence of the decision” the Tribunal proposes to make. The Tribunal observed at TR [265]:

The current issue is whether the Applicant continues to remain in the community for the time being on the Bridging visa, or he is granted the Protection Visa and the Bridging visa is no longer required.

42    The Tribunal considered the applicant’s submission that he may be removed from Australia if the Tribunal affirms the delegate’s decision and the Minister decides pursuant to s 197D(2) of the Migration Act that the Minister is satisfied that the applicant is no longer a person in respect of whom a protection finding would be made. The Tribunal considered at TR [288] that:

There is no evidence before the Tribunal to suggest that there is any prospect of any current or future Minister making such a decision. If a Minister were to make such a decision in the future, it would presumably be based on new, relevant information, or a change in circumstances in Myanmar. It is a matter of uninformed speculation to consider such a possibility.

43    The Tribunal accepted at TR [291] that “[i]f the Applicant held the Protection Visa, he would not remain potentially liable to be removed to a third country, at some indeterminate time in the future, under Nauru type arrangements” (emphasis in original).

44    The Tribunal concluded that:

This Other Consideration (a) weighs in favour of revocation.

45    In relation to Other Consideration (b) “Extent of Impediments if Removed”, which is required to be considered under para 9.2 of Direction 110, the Tribunal recorded at TR [296]–[298] (emphasis in original, footnotes omitted):

The Applicant says that if the Protection Visa is not granted, the Applicant may be liable to removal to Myanmar for the reasons set out in detail in the context of Other Consideration (a). He may then suffer persecution. Nevertheless, the Applicant says that this Other Consideration should be given neutral weight.

I agree. There is no presently foreseeable prospect of the Applicant being removed to any third country, let alone to a third country, that then sends him back to Myanmar.

This Other Consideration (b) is neutral.

46    The Tribunal summarised (under the heading ‘Conclusion’) its intermediate conclusions at TR [303]–[310] as follows:

Primary consideration 1 weighs very heavily against revocation.

Primary consideration 2 weighs very heavily against revocation.

Primary consideration 3 weighs slightly in favour of revocation.

Primary consideration 4 weighs slightly in favour of revocation.

Primary consideration 5 weighs very heavily against revocation.

Other consideration (a) weighs in favour of revocation.

Other consideration (b) is neutral.

Other consideration (c) is neutral.

47    The Tribunal observed at TR [316] that:

A refusal to grant the Protection Visa in this matter, would see the Applicant remaining in the community for the time being, albeit subject to the conditions of his Bridging visa. I accept that these conditions are more restrictive than the conditions that would apply if he held the Protection Visa. I also accept that the Bridging visa has a more temporary quality than the Protection Visa. I accept that the Bridging visa would result in greater uncertainty for the Applicant and his links in our community, than would the Protection Visa. This is discussed in some detail above.

48    The Tribunal originally expressed its conclusion at TR [319] in the following terms:

In my view, the proper application of the Direction leads the Tribunal to a finding that there is not “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.

49    On the same day as its reasons were published the Tribunal issued a corrigendum, making two corrections:

1.    At paragraph 132, replace 'DP Redfern' with 'Senior Member Emeritus Professor PA Fairall'.

2.    At paragraph 319, replace 's501CA (4)(b)(ii)' with 's501(1)'.

50    As corrected, and having regard to s 114(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), the Tribunal’s ultimate conclusion is taken to be:

In my view, the proper application of the Direction leads the Tribunal to a finding that there is not “another reason” pursuant to s501(1) to revoke the original decision.

Statutory Context

51    Section 501 of the Migration Act relevantly provides (emphasis added):

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

(2)    The Minister may cancel a visa that has been granted to a person if…

…

(3A)    The Minister must cancel a visa that has been granted to a person if…

52    Section 501CA(1) and (4) provide:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

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

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

(b)  the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

53    Section 500 relevantly provides:

(1)    An application may be made to the ART for review of:

…

(b)      decisions of a delegate of the Minister under section 501 (subject to subsection (4A)); or

(ba)     decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa; or

….

Consideration

54    It is convenient to consider ground 5 first.

Ground 5

55    The applicant submits that the Tribunal applied itself to the wrong question. The decision under review concerned the refusal to grant a protection visa and not the revocation of a cancellation of a visa.

56    The Minister submits that the Tribunal’s reasons need to be read fairly and as a whole and that when so read, the reasons do not reveal that the Tribunal misunderstood its statutory task. The Minister submits that, here, there are a number of instances in which the Tribunal correctly characterised its task. The Minister in particular highlighted TR [1], [3], [138], [142], [155] and [316] as instances where the Tribunal characterised its task correctly.

57    The Minister submits that the errors in the reasons are merely proofing errors.

58    The Minister provided to the Court an aide memoire identifying another decision of the Tribunal handed down eight days prior to the decision currently under review, and made by the same senior member of the Tribunal: Kelly v Minister for Immigration, Citizenship and Multicultural Affairs [2025] ARTA 327. The Minister submits that by comparing the reasons for the two decisions, it is “clear that the errors in this case are the result of using the decision in Kelly as a template for the decision in this case”, and “failing to update the wording of those paragraphs to refer to refusal instead of revocation”. The Minister submits that regard should be had to the context of the statutory deadline imposed on the Tribunal by s 500(6L) of the Migration Act. That section requires the Tribunal, in reviewing decisions concerning refusal, cancellation or non-revocation of a cancellation of a visa where the application is made by a person in the migration zone, to expedite its decision – because if no decision is made by the Tribunal at the end of the period of 84 days after the day on which the applicant was notified of the delegate’s decision, the Tribunal is taken to affirm the delegate’s decision.

59    The Court is satisfied that based on the record of its reasons, the Tribunal fell into jurisdictional error by failing to carry out its review function required by s 105 of the ART Act.

60    A decision made under s 501(1) is distinct to one under s 501CA(4). Whilst s 501(1) is concerned with a refusal by the Minister to grant a visa, s 501CA(4) is concerned with the revocation of the mandatory cancellation of a visa. As Shariff J explained in Minister for Immigration and Multicultural Affairs v Peralta Montes [2025] FCA 667 at [44]:

The exercise of the “refusal power” under s 501(1) is to be contrasted with the decision-making process involved in the exercise of the “cancellation power” under s 501(3A). Section 501(1) confers a broad discretionary power upon the Minister to refuse the grant of a visa if the relevant person does not satisfy the Minister that he or she passes the character test: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 [2021] FCAFC 179; 287 FCR 581 at [28] (Perram, Thawley and Stewart JJ); Nguyen [v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 180 (O’Sullivan J)] at [75]. By contrast, where the Minister exercises a power under s 501(3A), s 501CA prescribes a process whereby the person affected by the decision may make representations and the Minister may “revoke” the cancellation if such representations are made and the Minister is satisfied that either “the person passes the character test” (s 501CA(4)(b)(i)) or “there is another reason why the original decision should be revoked” (501CA(4)(b)(ii)). … [T]he word “revoke” does not appear in 501(1) (or in s 501, at all).

61    In the present case, by reason of the applicant’s application for review made to the Tribunal, the Tribunal was required to stand in the shoes of the delegate and decide whether the correct and preferable decision is to refuse the applicant’s application for a visa. In making this decision, the Tribunal was required by s 499(2A) of the Migration Act to apply Direction 110. Depending on the outcome of its review, the Tribunal was empowered to affirm, vary or set aside the decision under review pursuant to s 105 of the ART Act.

62    In the present case, having identified (at TR [1] and [3]) that the issue before it was whether to exercise the discretion to refuse to grant the applicant the visa pursuant to s 501(1) of the Migration Act, in conducting its analysis of the primary and other considerations specified in Direction 110, the Tribunal considered each element of each of the considerations contained in Direction 110 and concluded whether or not the primary consideration weighed in favour of the “revocation” of the cancellation of the applicant’s visa. Taking account of its correction made by the corrigendum, in its ultimate conclusion at TR [319] the Tribunal made a “finding” that “there is not ‘another reason’ pursuant to s501(1) to revoke the original decision”.

63    The Tribunal correctly identified, at the outset of its reasons, the issue that was before it. However, in proceeding to apply Direction 110 (as it was required to do), it largely failed to apply the considerations required to be considered in a manner that reflected the decision under review.

64    The Minister’s submission that the references to revocation or s 501CA in the Tribunal’s decision are in the nature of erroneous slips is not accepted.

65    First, the Tribunal’s failure extended beyond erroneous wording used in some isolated paragraphs. The error is present in the paragraphs that follow the heading ‘Legislative Framework’, and in the sub-heading by which the Tribunal frames its task in applying Direction 110: TR [153]–[154]. The references to revocation appear in each of the statements of conclusion made by the Tribunal under the heading for each primary consideration and the only ‘other consideration’ not regarded as neutral: TR [164]–[292]. This erroneous reference also appears in each of the intermediate conclusions summarised whilst the Tribunal was weighing up all of the primary and other considerations, at TR [302]–[308], as well as in its ultimate conclusion at TR [319] (even as amended by the corrigendum). This case is therefore distinguishable from DVRL v Minister for Immigration and Citizenship [2025] FCA 876 at [62], [67], [69] (Bromwich J) and from Finau v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 8 at [50]–[53] (Perry J).

66    Second, the Tribunal’s error went beyond mere infelicitous language but infected the correctness of its analysis.

67    Direction 110 applies to three categories of decisions:

(1)    A decision to refuse to grant a visa under s 501(1).

(2)    A decision to cancel a visa under s 501(2).

(3)    A decision to revoke a mandatory cancellation of a visa under s 501CA.

68    Direction 110 specifically directs that in cases concerning a refusal to grant a visa, certain considerations apply differently than in relation to a revocation or cancellation decision, in two ways.

(1)    Consideration 8.1.2(2)(c) applies “where consideration is being given to whether to refuse to grant a visa”, but is otherwise not expressed to apply to a cancellation or revocation of a cancellation of a visa.

(2)    Consideration 8.3(2) (dealing with the strength, nature and duration of ties to Australia) applies “Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa” but is not expressed to apply to a refusal to grant a visa. Consideration 8.3(2) is thus expressed to apply only to some of the categories of decisions to which Direction 110 applies, unlike consideration 8.3(1) (which requires decision makers to consider any impact of the decision on the non-citizen’s immediate family members in Australia (with citizenship, permanent residency or a right to remain indefinitely)). Consideration 8.3(2), when it applies, requires the decision maker to consider the strength, nature and duration of “any other ties that the non-citizen has to the Australian community”. In referring to ‘other ties’, the Consideration is referring to ties to the Australian community other than ties to immediate family members in Australia, as described in 8.3(1), including other family or social links: 8.3(2)(b). When it applies, para 8.3(2)(a) requires the decision maker to have specific regard to the non-citizen’s length of time in Australia, when the non-citizen began offending and time spent positively contributing to the Australian community.

69    In DVRL, the Tribunal reasons were said to indicate a “nuanced understanding” of the differences between cancellation and revocation on the one hand and refusal to grant a visa on the other, in the context of considerations 8.3(1) and (2) of Direction 110. Bromwich J stated at [63(g)] (emphasis added):

At ART[138], it is stated that “I consider there is little impact on immediate family members if he is not granted a visa.” The following two paragraphs indicate a nuanced understanding of the differences between cancellation and revocation on the one hand and refusal to grant a visa on the other, and the correct test is stated in the conclusion:

[139] Consideration of the Applicant’s other ties to the Australian community is only required in considering whether to cancel a visa, or not to revoke the cancellation of a visa. It does not apply to a refusal to grant a visa. In any event, the Applicant has been unable to build ties to the community, other than with those who have supported him while in detention, due to his lengthy incarceration and prolonged detention.

[140] Overall, this consideration is given slight weight against refusing to grant the Applicant a visa.

70    In the present case:

(1)    The Tribunal’s reasons do not give any consideration to para 8.1.2(2)(c) (as summarised at [28]–[31] above). The Tribunal extracted para 8.1.2(2) of Direction 110 at TR [191] but then only addressed 8.1.2(2)(a) and (b) and proceeded to its conclusion on Primary Consideration 1 without addressing para 8.1.2(2)(c): TR [192]–[207].

(2)    Unlike in DVRL, the Tribunal in its reasons considered the matters referred to in consideration 8.3(2) (as summarised at [35] above) without any acknowledgement that the decision before it was not a revocation or cancellation decision but a refusal to grant a visa: TR [212]–[227]. When this was put to the Minister at the hearing before this Court, counsel for the Minister accepted that the Tribunal appears to have assessed Primary Consideration 3 in light of para 8.3(2) of Direction 110, which did not apply to the task before it.

71    As noted above, the Tribunal issued a corrigendum to the reasons for its decision on 5 March 2025, the same date as the Tribunal delivered its reasons. It is apparent by item 2 of the corrigendum that the Tribunal considered that there was an issue with the correctness of the reference at TR [319] to s 501CA(4)(b)(ii) of the Migration Act.

72    Unlike its predecessor, the Tribunal has express statutory authority to issue a corrigendum in the circumstances provided for in s 114 of the ART Act. That section provides:

(1)    If, after the Tribunal makes a decision, the Tribunal considers that there is an obvious error in the text of:

(a)    the decision; or

(b)    the statement of reasons for the decision;

the Tribunal may alter the text of the decision or statement.

Note:    The following are examples of obvious errors in the text of a decision or statement:

(a)    an obvious clerical or typographical error in the text of the decision or statement;

(b)    an inconsistency between the decision and the statement of reasons for the decision.

(2)    If the text of a decision is altered under subsection (1), the altered text is taken to be the decision. If the text of a statement is altered under subsection (1), the altered text is taken to be the statement.

73    The position for the Tribunal in the present case in relation to the corrigendum was thus distinguishable from that discussed by the High Court in CRI026 v Republic of Nauru [2018] HCA 19; (2018) 355 ALR 216 at [60] (Kiefel CJ, Gageler and Nettle JJ). The Minister referred the Court to authority which suggests the admissibility of a corrigendum in circumstances where the applicant (rather than the decision maker) has invoked reliance on it: see BLD20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 294 at [25]–[26] (Kennett J). The applicant made reference to the corrigendum in his written submissions in the present case.

74    The corrigendum in the present case does not assist the Minister.

75    First the corrigendum did not change the reasoning process of the Tribunal. The fact that the Tribunal saw it necessary to address the erroneous reference in the one instance in its reasons at TR [319], without attention to the various other instances where the same or similar error is made, fortifies the Court’s conclusion that the Tribunal misunderstood its statutory task.

76    Second, if anything, the amendment to TR [319] made by the corrigendum reveals further confusion on the part of the Tribunal. Section 501 makes no reference to “another reason” and it is no part of the Tribunal’s task in exercising the power under s 501 on review to search for some “other reason” to exercise the power. The substitution of s 501(1) for s 501CA(4)(b)(ii) in TR [319] does not support a conclusion that the Tribunal understood its statutory task.

77    The role of the Tribunal is to remake the decision under review and to determine for itself on the material before it the decision which it can, and which it considers should, be made in the exercise of the powers conferred on the primary decision maker for the purpose of making the decision under review: see Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; (2024) 278 CLR 628 at [14] (Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ) (discussing the former Administrative Appeals Tribunal but in terms which apply with equal force to the Tribunal).

78    The Tribunal’s reference to ‘revocation’ of an original decision, on a de novo review of a decision to be made under s 501(1), calls into question whether the Tribunal understood the fundamental nature of the review task it was required to perform. As Shariff J explained in Peralta Montes at [55]–[56]:

It may well be the case that what the Tribunal intended to say [by using the language of ‘revocation’] was that the considerations in favour of setting aside the refusal of the Visa Application outweighed the considerations in favour of not setting aside that refusal. But if this is what the Tribunal intended or meant, it demonstrated the further fundamental difficulty that the Tribunal had not attended to the basal task of addressing itself to the correct and preferable decision. Rather, this analysis demonstrates that the Tribunal set about the discharge of the statutory task by assessing whether each relevant consideration, and the considerations in their totality, weighed in favour of setting aside the delegate’s refusal. This was not the correct question. The Tribunal was required to stand in the shoes of the delegate to determine the correct or preferable decision based on its independent assessment.

…

It is plain here that the Tribunal undertook an exercise of assessing whether it should set aside the delegate’s decision, as opposed to assessing what was the correct or preferable decision.

79    The Court accepts that the Tribunal faces constraints in the making of its decision, particularly in reviews of expedited character decisions including by virtue of s 500(6L) of the Migration Act. However, as Bromwich J observed in DVRL at [63], the fact that a very short time elapsed between the hearing and the publication of reasons (in that case 11 working days and in the present case merely 3 working days) will not “save the reasons if the error is more than an infelicity, which actually affects the decision” as has happened in the present case.

80    The Court further observes that at TR [260] the Tribunal purports to extract from para 9.1.1(3) of Direction 110 (emphasis added):

(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501 CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501 CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501 E of the Act and regulation 2.12AA of the Regulations.

It is reasonably apparent that this extract has copied directly the text of para 9.1.1(3) of former Direction 99 (which runs across pages 12–13 of that Direction), and has carried with it the page number and header of that document, without the Tribunal editing that out of the extract. As the Tribunal recognises at TR [154], fn111, Direction 99 was no longer in force at the time of the Tribunal’s decision. The errant reference to Direction 99 may further suggest the Tribunal has copied this extract of para 9.1.1(3) from a previous decision of the Tribunal.

81    It may be accepted that the mere use by the Tribunal of a template based on a past decision to formulate subsequent reasons in a different matter does not necessarily demonstrate a failure to carry out its task: CRI026; WAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1293; (2003) 133 FCR 209 at [52] (French J). However, if a template is used, the template must be appropriately reflective of the review task, must address the correct statutory question and must accommodate engagement with and evaluation of the material before the Tribunal.

82    In the present case, an examination of the Tribunal’s reasons and the comparison with the reasons given in Kelly, including the erroneous reference to Direction 99, indicate that the Tribunal’s formulation in the present case may have been the result of the Tribunal cutting and pasting from other decisions in the preparation of its reasons. Irrespective of speculation about how the errors came about, the fact is that the formulation that the Tribunal repeatedly used throughout its reasons was framed by reference to the wrong statutory question (similar to Peralta Montes at [59]). Based on the record of its reasons, the Tribunal failed to carry out its task.

83    The Court is satisfied that the Tribunal mischaracterised its statutory task, and so constructively failed to exercise its jurisdiction to review the delegate’s decision as conferred by s 105 of the ART Act.

84    The Minister conceded that if the Court is satisfied that the Tribunal erred by asking itself the wrong question or applying the wrong statutory test, there is a realistic possibility that the outcome could have been different if the error had not been made and that accordingly, the error, if made, was material.

85    Ground 5 is therefore established. The Tribunal fell into jurisdictional error and the further amended application for judicial review must be allowed.

86    The High Court observed in CRI026, in the context of a Tribunal decision where the reasons included a single paragraph containing incorrect references (in that case relating to the wrong country) at [56]–[57] (emphasis added):

…somehow a typographical error – possibly an error in editing a form of words cut and pasted from a previous decision in another matter – resulted in references to Sri Lanka and Tamils rather than Karachi and the MQM.

It is unfortunate that such an error should have been permitted to occur. It suggests a lack of care in final proof reading of reasons for which all three members of the Tribunal were responsible – but the principal burden of which falls on the presiding member – that should not have occurred and should not be repeated. Such errors are likely to create doubts about the validity of decisions which should not arise. ….

87    Although the Court appreciates the very significant demands made upon Tribunal members, this is at least the third recent occasion in which errors have arisen which might appear to have resulted from use of a ‘cut and paste’ technique: see also CRI026; Peralta Montes at [59]. The errors in this case, as in Peralta Montes, have resulted in jurisdictional error.

88    Although it is strictly unnecessary to consider the remaining grounds of review (being grounds 1–3), the Court is nonetheless satisfied that, for the reasons set out below, none of those remaining grounds have been made out.

Ground 3

89    The applicant did not call his father as a witness in the Tribunal hearing to support the applicant’s claim that their relationship was repaired. The Tribunal considered this a “critical relationship” in circumstances where the applicant’s evidence was that he had raped his step-mother as an act of revenge towards his father because he had been angry with his father and the applicant had been drunk at the time (TR [25], [49]). The Tribunal also noted that, at the time of the hearing, the applicant was living with his father and one of the applicant’s sisters and the applicant claimed his father to be one of the applicant’s “protective supports” (TR [9], [25], [203]–[204]).

90    The Tribunal (at TR [21]) considered the applicant’s failure to call his father to give evidence “unfortunate”. In considering the impact of the applicant’s criminal conduct on the victims of that conduct (consideration 8.1.1(1)(d)), the Tribunal recognised the applicant’s father as one of those victims given the applicant had been convicted in 2010 of contraventions of an intervention order protecting his father, two counts of making a threat to kill his father, and assault with a weapon (amongst other offences). The Tribunal was not prepared to accept that the applicant’s relationship with his father had been repaired, recording at TR [177]:

The Applicant claims that he has repaired his relationship with his father and that all is forgiven. His father was not called as a witness. I am not prepared to take the Applicant’s word for this. The best evidence available, was not called.

91    The applicant relies upon TR [177] to characterise the Tribunal’s reasoning as declining to find that the applicant’s relationship with his father was repaired “on the basis that the applicant did not call his father to give evidence”. The applicant submits that reasoning was irrational because:

(a)    the evidence before the Tribunal was that the father suffered from dementia;

(b)    the applicant and his two sisters gave evidence that his relationship with his father was repaired; and

(c)    the father had given a letter of support for the applicant dated 31 July 2023 in respect of previous Tribunal proceedings, and attended the Tribunal on the third hearing day “to support” the applicant.

92    The applicant submits that the only available rational inference was that the father had not been called because he has dementia and the Tribunal’s decision to not find that the relationship had been repaired based upon the non-calling of the father was irrational and / or involved a failure to take account of a relevant consideration, being the father’s dementia.

93    The applicant’s characterisation of the Tribunal’s reasoning is not accepted. The Tribunal’s reasons must be read as a whole. The Tribunal did not decline to find that the relationship between the applicant and his father had been repaired “based on” the applicant’s failure to call his father as a witness. The Tribunal (at TR [15]) had formed the “strong view” that the applicant’s evidence to the Tribunal was “unreliable” and it was “not prepared to make uncorroborated assumptions in his favour” (TR [17]). The Tribunal did not accept the evidence of the applicant’s sisters (S1 and S2) as corroborating the applicant’s claims because “[a]ll of them were very reluctant to answer questions about their father” (TR [24]). The Tribunal said at TR [203]:

The Applicant is now living with his father, who was one of his victims. His father was not called to give evidence about their current relationship. I do not accept the Applicant's account. I do not accept that S1 and S2 were prepared to tell the Tribunal the full story about their father and his relationship with the Applicant.

94    In response to a question from the Tribunal to the applicant as to whether there was any reason that his father was not called to give evidence, the applicant said he “did not know that he could be invited to present … evidence”. The Tribunal considered this explanation to be “unconvincing”: TR [27].

95    Reading the reasons as a whole, the Tribunal declined to find that the applicant’s relationship with his father was repaired because it had no reliable evidence that the relationship had been repaired. The Tribunal did not decline to make the finding the applicant sought by drawing an adverse inference from the failure to call the applicant’s father as a witness (TR [27]), but because the applicant’s claim that the relationship had been repaired was uncorroborated by reliable evidence and the Tribunal was not prepared to assume that the applicant’s father would have supported the applicant’s claims (TR [27]). That reasoning is not irrational.

96    Ground 3 is not made out.

Grounds 1 and 2

97    These grounds are concerned with procedural fairness relating to how the proceedings had been conducted before the Tribunal. In light of the Court’s conclusion in respect of ground 5 and the relief which must follow, that is, requiring that the Tribunal’s decision be quashed and the Tribunal be directed to reconsider the review application according to law, grounds 1 and 2 may be dealt with briefly.

98    In so far as ground 1 is concerned, the Tribunal adjourned the hearing to allow time for the applicant’s legal representative to read the 24 pages of supplementary G documents the Minister provided on the morning of the hearing. The amount of time allowed (40 minutes) was granted at the indication of the applicant’s legal representative that that would be the time he required to read those documents. In granting the adjournment, the Tribunal said:

When we come back, if it turns out that you have not been able to digest all of that, and you need further time, you can let me know and we’ll deal with that if and when that arises.

99    Upon resuming the hearing after the 40-minute adjournment, the following exchange occurred:

SENIOR MEMBER: How did we go?

COUNSEL FOR THE APPLICANT: Yes, Member. I’ve read the document and I’m ready, in the sense that if the Member will permit, we’ll proceed to my opening.

100    There was no denial of procedural fairness in relation to the supplementary G documents as alleged in Ground 1. Ground 1 is not made out.

101    Ground 2 concerns comments made by the Tribunal in relation to the applicant’s use of an interpreter. The Tribunal considered that that use made the task of assessing the applicant’s testimony more difficult because it was difficult to assess whether the interpreted words accurately reflected the applicant’s intent (TR [8]).

102    The Tribunal concluded that the applicant was not a reliable witness because:

(a)    at times, the applicant was vague and evasive in answers to questions: TR [9];

(b)    the applicant frequently contradicted recorded accounts of events, including his own past statements: TR [10]; and

(c)    the applicant had “admitted to lying in the past to get what he wants”: TR [12].

103    The Tribunal did not draw an adverse inference about the applicant’s credibility from the use by the applicant of an interpreter.

104    The Tribunal also considered that because the applicant elected to use an interpreter, the Tribunal was unable to assess the applicant’s ability to understand English and therefore had no means of assessing whether the applicant would have comprehended the content of any of the rehabilitation courses that he completed (TR [16]). However, the Tribunal was not satisfied that the applicant had undertaken “adequate rehabilitation” (TR [210]) because the applicant had not as yet undertaken “sex offender treatment” (TR [200]). That finding was not based on the Tribunal’s inability to assess the applicant’s understanding of English.

105    Grounds 1 and 2 are not made out.

Conclusion

106    The applicant’s application must be allowed on the basis of ground 5.

107    A writ of certiorari will issue quashing the Tribunal’s decision made on 5 March 2025. A writ of mandamus will issue directed to the Tribunal requiring it to determine the applicant’s review application according to law.

108    The first respondent is to pay the applicant’s costs of the application for judicial review.

Associate:

Dated:    6 March 2026