Federal Court of Australia

HLWS v Minister for Immigration and Multicultural Affairs [2026] FCA 243

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to submit proposed orders giving effect to the Court’s reasons and addressing costs, by 4:00pm on 19 March 2026.

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

REASONS FOR JUDGMENT

BUTTON J:

Introduction

1    On 19 September 2025, the Applicant lodged an application under r 31.23 of the Federal Court Rules 2011 (Cth) for an extension of time to lodge an application for the review of a migration decision under s 477A(2) of the Migration Act 1958 (Cth) (Act), being a decision of the Administrative Review Tribunal (Tribunal) dated 3 February 2025, with reasons published on 31 March 2025.

2    By that decision, the Tribunal affirmed a decision made by a delegate of the First Respondent (Minister) to refuse the Applicant’s application for a Resolution of Status (Class CD) (Subclass 851) visa (RoS visa) under s 501(1) of the Act.

3    If the extension of time is granted, the Applicant’s Amended Draft Originating Application seeks orders quashing the Tribunal’s decision and directing that the matter be remitted to the Tribunal for determination according to law.

4    For the reasons that follow, the application for an extension of time will be granted, and the application for review of the Tribunal’s decision will be allowed.

Background

5    The Tribunal’s reasons (T) set out the relevant background as follows:

1.     This is an application by HLWS (“the Applicant”) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister” or “the Respondent’) on 11 November 2024 to refuse, under section 501(1) of the Migration Act 1958 (Cth) (“the Act”), to refuse the Applicant’s application for a (Class CD) Resolution of Status visa.

2.     The Applicant, born in 1994 or 1995, first arrived in Australia on 1 June 2013 on Christmas Island as an unauthorised maritime arrival, aged 18.

3.     On 23 June 2017, the Applicant was granted a Temporary Protection (subclass 785) visa. Between September and October 2019 the Applicant visited his family in a refugee camp in Bangladesh.

4.     On 23 June 2020, the Applicant’s Temporary Protection visa ceased.

5.     On 27 February 2023, the Applicant was convicted of

•    two counts of sexually touch another person without consent and sentenced to 10 months imprisonment (aggregate)

•    use carriage service to menace/harass/offend, stalk/intimidate intend fear physical harm etc (personal) and sentenced to a s 10A conviction with no other penalty

•    destroy or damage property and sentenced to a two-year community correction order and ordered to pay compensation to the victim of $761

•    three counts of common assault-T2 and sentenced to a s 10A conviction with no other penalty

6.     On 9 March 2023, the Applicant applied for a Resolution of Status (Subclass 851) visa.

7.     On 24 May 2024, the Applicant was notified of an intention to consider the refusal of his Resolution of Status (Subclass 851) visa application.

8.     On 24 June 2024, 26 July 2024 and 8 October 2024, the Applicant responded to notifications about possible refusal of his visa.

9.     On 11 November 2024, the Minister’s delegate refused the Applicant’s visa application, however, he was granted a Bridging Visa R and released from immigration detention.

10.     On the same day, the Applicant applied to the Administrative Review Tribunal (“the Tribunal”) for review of the decision to refuse his application for a visa.

11.     The matter was heard on 21 January 2025. On 3 February 2025, the Tribunal handed down its decision affirming the reviewable decision without delivering reasons. Following are the reasons for that decision.

The Tribunal’s decision

6    The decision under review was made pursuant to s 501(1) of the Act, which provides that 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. The Tribunal was therefore required to determine:

(a)    whether it was satisfied that the Applicant passed the character test; and

(b)    if not so satisfied, whether it should exercise its discretion to refuse to grant the Applicant a visa.

7    In relation to the first of these issues, s 501(6)(d)(i) of the Act relevantly provides that a person does not pass the character test if, in the event the person were “allowed to enter or to remain in Australia”, there is a risk that the person would engage in criminal conduct in Australia.

8    The Tribunal observed that the Applicant’s case is unlike most cases where, if the applicant is successful, he or she will remain in Australia, and if unsuccessful, he or she will be removed. By contrast, the outcome of the Applicant’s case would not determine whether he would be allowed to remain in Australia, at least in what the Tribunal termed “the short term” or “the reasonably foreseeable future”. Rather, the practical outcome of the case before the Tribunal for the Applicant was that:

(a)    if successful, he would remain in the community and probably be granted a RoS visa, which would allow him to remain in Australia permanently and give him a path to citizenship; or

(b)    if unsuccessful, he would remain in the community on his existing “Bridging R (Class WR) (Subclass 070) (Removal Pending)” visa (BVR) until such time (if ever) that his removal becomes practicable within the reasonably foreseeable future, at which time he will be re-detained for removal from Australia.

9    The circumstance that the Applicant would remain in Australia whether or not he was successful arose because the Applicant has been found to be a Rohingya refugee who it is not reasonably practicable to remove from Australia in the reasonably foreseeable future, with the consequence that his continued immigration detention is not permitted under the Constitution: see NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37.

10    Notwithstanding this practical matter concerning the Applicant being “allowed to enter or to remain in Australia”, the Tribunal found that, for the purposes of s 501(6)(d)(i), the Applicant would not pass the character test “if the Tribunal finds if he remains in the community on either visa there is a risk that he would engage in criminal conduct in Australia” (T [23]).

11    The Tribunal’s reasons concerning whether the Applicant passed the character test are set out below at paragraphs 50–51, and not repeated here.

12    Having concluded that the Applicant did not pass the character test, the Tribunal proceeded to consider whether to exercise the discretion conferred by s 501(1) to refuse to grant the Applicant a visa. In addressing the exercise of the discretion, the Tribunal had regard to Ministerial Direction No 110: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (21 June 2024) (Direction 110), which provides guidance for decision-makers in determining, relevantly, whether to refuse to grant a visa to an applicant (T [36]).

13    Paragraph 8 of Direction 110 sets out the following five “primary considerations” when making a decision under, relevantly, s 501(1) of the Act:

(1)    Protection of the Australian community from criminal or other serious conduct.

(2)    Whether the conduct engaged in constituted family violence.

(3)    The strength, nature and duration of ties to Australia.

(4)    The best interests of minor children in Australia.

(5)    Expectations of the Australian community.

14    Without limiting the matters to which decision-makers may have regard, paragraph 9 of Direction 110 then lists the following “other considerations” which must also be taken into account:

(a)    legal consequences of the decision;

(b)    extent of impediments if removed; and

(c)    impact on Australian business interests.

15    In relation to protection of the Australian community from criminal or other serious conduct, the Applicant argued that the Tribunal should find that he did not, in fact, commit the crimes of which he was convicted. The Tribunal rejected this submission, finding that the court in which the Applicant was convicted would have been best placed to come to a conclusion as to the Applicant’s guilt or otherwise, given its expertise in that area, and the fact that it had evidence presented to it at trial and was assisted by defence counsel and prosecutors with expertise in criminal law (T [51]).

16    The Tribunal further found (at T [53]) that at least some of the Applicant’s offences were classed as “very serious” offences under paragraph 8.1.1(1) of Direction 110, and that (T [56]):

the nature of the Applicant’s serious offences involved sexual or violent offending against a woman causing her great distress. If this sort of offending were repeated, it could mean that other women of the Australian community would be similarly violated potentially causing severe physical and mental harm.

17    Having found that much of the Applicant’s offending was very serious and that the Applicant had a low/moderate risk of reoffending (also described as “the lower end of the moderate risk level”), the Tribunal found that the risk to the Australian community was “real and significant”, “especially in circumstances where a repeat of much of the Applicant’s offending could result in serious harm to the women of the Australian community” (T [58]). The Tribunal then proceeded to consider the consequence of this finding in light of the Applicant’s particular circumstances, as outlined at paragraphs 8–9 above, whereby the outcome of the Applicant’s review application will affect the type of visa that he will hold, but not whether or not he will be allowed to remain in Australia for the reasonably foreseeable future (T [60]–[64]).

18    The Tribunal found there to be a greater chance of the Applicant being removed from Australia, in the long term, if he was holding a BVR as opposed to a RoS visa (T [61]). Additionally, the Tribunal found that the BVR “facilitates a number of conditions which are designed to prevent a non-citizen from re-offending such as monitoring bracelets, curfews and reporting obligations which the Applicant would not be subjected to as the holder of a Resolution of Status visa with permanent residence, and certainly not as a citizen where removal would not be an option” (T [62]). The Tribunal concluded (T [63]–[64]):

63.     Thus, even though Dr Kwok’s evidence was that the Applicant’s risk of re-offending would be the same regardless of the type of visa he held, I find that there is less of a risk of the Applicant re-offending if the refusal decision is affirmed, first in the short to medium term when the Applicant holds a Bridging Visa R and then possibly in the longer term if the Applicant is ultimately removed from Australia. Similar reasoning was found permissible by Halley J in XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 14 and Jackson J in JNMQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1375 in the context of the exercise by the Minister of their personal power in section 501BA of the Act. I consider that there is no reason why similar reasoning would not apply in the context of decision making under section 501(1) of the Act.

64.     In that way, I find that the primary consideration of the Protection of the Australian community weighs in favour of visa refusal but have only given moderate weight to this primary consideration. More evidence from the Respondent as to the lower risk of someone on a Bridging Visa R vis a vis a Resolution of Status visa would be required before that weight increased.

19    The other primary considerations in Direction 110 that the Tribunal considered relevant to the Applicant’s case were: the “strength, nature and duration of ties to Australia”, and the “expectations of the Australian community”. As to the first of these matters, the Tribunal accepted that in the time that the Applicant was not offending, he was contributing positively to Australia including in his employment in the community and his work in prison (T [70]). Overall, the Tribunal gave this consideration a low level of weight against visa refusal, and further noted that (T [71]):

regardless of whether this is a primary consideration or not in this case I have given this consideration and the weight I attribute it the same amount of weight as I would have it were an “other” consideration.

20    As to the matter of the “expectations of the Australian community”, the Tribunal observed that the Applicant breached the Australian community expectations set out in paragraph 8.5(1) of Direction 110 when he failed to obey Australian laws (T [74]). The Tribunal weighed this consideration primarily by having regard to the nature and seriousness of the Applicant’s offending which was said to inform the severity of the breach of the community expectation to obey the law (T [76]). The Tribunal ultimately placed heavy weight on this primary consideration in favour of visa refusal (T [79]).

21    The Tribunal then proceeded to address the first two “other considerations” listed in paragraph 9 of Direction 110 (it was common ground that the third was not relevant to the Applicant’s case).

22    In relation to the “legal consequences of the decision”, the Tribunal again noted the circumstances outlined at paragraphs 8–9 above, and also observed a number of adverse consequences to the Applicant of remaining on a BVR including: the uncertainty associated with his potential future removal from Australia; an inability to bring his family to Australia; difficulties in securing services in Australia; and the stigma and embarrassment he may experience (T [83]–[86]). Overall, the Tribunal found this consideration to weigh moderately against visa refusal (T [87]).

23    In relation to the “extent of impediments if removed”, the Tribunal observed that it was not possible to say whether the Applicant, if on a BVR, would ever be removed from Australia or, if removed, where he would be sent (T [90]). The Tribunal accepted that it would be difficult for the Applicant to establish himself elsewhere, especially if he were sent to a country with an unfamiliar language and culture (T [91]), but also noted that his work experience in Australia would assist him with employment overseas (T [92]). Overall, the Tribunal found this consideration to weigh moderately against visa refusal (T [93]).

24    Ultimately, the Tribunal decided that the primary considerations of the protection and expectations of the Australian community outweighed all other considerations in the Applicant’s favour (T [98]). Having found that the Applicant did not pass the character test (for the reasons set out below at 50–51), the Tribunal decided to exercise the discretion under s 501(1) to refuse the Applicant’s visa application and, accordingly, affirmed the decision under review (T [99]–[101]).

Grounds of review

25    The Applicant advances three grounds of review, set out as follows in his Amended Draft Originating Application (with the particulars omitted):

1.    The Tribunal failed to carry out its statutory task when determining for the purposes of s 501(1) read with s 501(6)(d)(i) of the Act whether the Applicant had satisfied it that he passed the character test.

2.    The Tribunal failed to comply with Ministerial Direction 110, by failing to have regard to mandatory considerations or make required findings in its assessment of the primary consideration of the protection of the Australian community.

3.    There [sic] Tribunal made a finding of fact with no probative basis, being that a repetition of the Applicant’s offending could cause “severe physical … harm” to women in the Australian community.

26    The focus of the hearing was very much on Ground 1. The particulars to Ground 1, as it was framed in the Amended Draft Originating Application, referred to a number of matters said to have been raised by the Applicant as going to the risk of him reoffending, but which were not addressed by the Tribunal (lack of prior offending, the offences all involving a single person, the offences being the first and only indication of adverse behaviour against women despite how long the Applicant had been in Australia and in the Australian community, his good behaviour record in custody, his conduct following release, and his motivations to comply with the law to try and bring his stateless family to Australia). The particulars to Ground 1 also referred to the Tribunal’s adoption of Dr Kwok’s report without engaging with her methodology or underlying reasoning. These points were then addressed by the Applicant’s written submissions, and responded to by the Minister in his written submissions.

27    However, while not formally abandoning the written arguments on Ground 1, the battleground on which the parties engaged shifted in the hearing. In particular, the Applicant’s case on Ground 1 was that he had clearly raised the issue that Dr Kwok’s opinion on his risk of reoffending was expressed on a “without interventions” basis, whereas he was willing to engage in therapeutic interventions, thus lowering the risk of him reoffending. In explaining the change of focus, counsel for the Applicant said that the Minister put against him that everything was wrapped up in the fact that Dr Kwok’s report was adopted by the Tribunal, and the changed focus was responsive to the Minister’s position. The Applicant also referred to a part of the Applicant’s written submissions that did observe that he was willing to undertake interventions.

28    In making oral submissions, counsel for the Minister stated that this point — which I refer to as the interventions point — was not elaborated upon in the Applicant’s written submissions. However, the Minister did not submit that the Court could not, or ought not, consider it in addressing Ground 1. On the contrary, the Minister’s counsel made detailed submissions on the interventions point.

29    As will be seen below, I consider that Ground 1 ought to succeed on the interventions point. This, together with consideration of the application for an extension of time in which to file his application for a review of the Tribunal’s decision, is dispositive. In those circumstances it is unnecessary — as well as being inefficient and wasteful of limited Court resources — to address the parties’ other contentions regarding Ground 1, and Grounds 2 and 3.

Extension of time application

30    The Tribunal made its decision on 3 February 2025, but did not publish its reasons until 56 days later, on 31 March 2025, after the 35 day period for applying for judicial review had already expired (s 477A(1)). Nonetheless, the Applicant’s application for an extension of time was not made until 25 September 2025.

31    Pursuant to s 477A(2) of the Act, this Court may, by order, extend the 35 day period “as [the Court] considers appropriate” if an application for an extension is made specifying why the applicant considers that it is “necessary in the interests of the administration of justice”, and the Court is satisfied that it is necessary in the interests of the administration of justice, to make the extension order.

32    The parties were agreed that the following factors are relevant to the Court’s consideration of whether to make an order extending time under s 477A(2), as set out in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (Tu’uta Katoa) at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ) and [40] (Gordon, Edelman and Steward JJ):

(a)    the length of the applicant’s delay;

(b)    the adequacy of the applicant’s explanation for the delay;

(c)    prejudice to the Minister and third parties; and

(d)    the merits of the underlying application.

33    The length of the delay here is to be considered in light of the fact that no reasons were provided by the Tribunal until nearly two months after the decision was made. As the Minister accepts, it is hard for an applicant to formulate grounds of review without reasons. Nevertheless, the delay is substantial, relative to the statutory 35 day limit.

34    In his submissions, the Applicant summarises the evidence he put on (being his own affidavit and that of his solicitor) explaining his delay (footnotes omitted):

The applicant has provided an acceptable explanation for the delay, which was no more than moderate in length.

(a)     The applicant had a lawyer at the Tribunal who told him after the decision that he needed to find a barrister to appeal to Court. But the applicant faced significant practical and psychological barriers to securing suitable legal representation. His language is Rohingya and he struggles to communicate in English about complex things. He did not know how to find a barrister and could not find anyone to help him.

(b)     After receiving the decision, the applicant was devastated and felt hopeless; could not eat, talk or sleep; did not feel able to tell his family because of the consequences for them; and was horrified by his family’s situation and felt responsible for their suffering. At the same time, he was working seven days a week to try to rebuild his life and help his family after so long in detention, but had an electronic monitoring device and other visa conditions which made everyday life very hard.

(c)    In late August 2025, the Australian Government and the Republic of Nauru entered into a memorandum of understanding containing undertakings for the long-term residence of people who have no legal right to stay in Australia to be received in Nauru. In September 2025, Russell Kennedy was contacted by Human Rights 4 All with a request to refer the applicant for legal assistance. In mid-September, a pro bono lawyer from Russell Kennedy provided advice to the applicant about challenging the Tribunal decision in court. The applicant worked to file the application as soon as he could with their assistance.

35    In my view, the explanation proffered exposes real personal impediments to the Applicant being able to progress an application for review. While the Minister is correct to point out that the Applicant did not have to have a lawyer in order to lodge an application, what he was told about getting a lawyer is part of his overall explanation as to why he did not act sooner.

36    The Minister accepts that there is “little” prejudice to him in the grant of an extension that cannot be compensated by costs. The Minister’s submissions do not, however, identify any prejudice. The only other matter the Minister points to under the heading of “prejudice” is the public interest in the prompt disposition of allegations that “Commonwealth officers” have acted in excess of jurisdiction, and that he has an interest in the timely disposal of visa applications, which would be prejudiced by an extension of time. The point taken about expeditious disposition of such challenges is reflected in the very existence of the time limit, but Parliament has expressly allowed for that period to be extended in the stipulated circumstances. There is no relevant prejudice to the Minister in the grant of an extension of time.

37    The parties’ submissions also addressed the consequences to the Applicant if the extension of time is refused. If the extension is refused, the Applicant will remain in the Australian community, but on a BVR, with certain conditions and with the continuing possibility of ultimate removal to a third country (he is a stateless refugee), but without being able to challenge a decision to refuse him a RoS visa, that he contends lacked lawful authority.

38    The decisive point in my assessment that it is necessary in the interests of the administration of justice to grant the extension order is that Ground 1 has real merit. The merits of Ground 1 are addressed below. While it is often appropriate to assess the merits at a “reasonably impressionistic” level in considering an application for an extension of time, there are cases — and this is one — where a more detailed analysis of the merits is appropriate: Tu’uta Katoa at [17]–[18] (Kiefel CJ, Gageler, Keane and Gleeson JJ). In addition, as the application for an extension of time was heard with the substantive application, it would be artificial to separately consider the merits of Ground 1 on an impressionistic level, only to go on to address Ground 1 in substance.

39    The application for an extension of time is granted.

Review application

Ground 1: did the Tribunal fail to carry out its statutory task in assessing whether the Applicant failed the character test, by failing to address evidence and submissions regarding the risk of the Applicant reoffending?

40    The answer to this question is yes, because the Tribunal failed to address a significant contention advanced by the Applicant regarding the risk of him reoffending. In particular, the Tribunal adopted the evidence of Dr Kwok as to the risk of the Applicant reoffending, but did not address at all the Applicant’s contention that Dr Kwok’s opinion stated her assessment of the risk if the Applicant did not have any interventions, whereas the evidence was that the Applicant was willing to engage with interventions and the point was clearly put to the Tribunal as a matter that bore on the risk of reoffending. For the reasons I go on to explain, this is not a case where an inference is open that the Tribunal simply did not consider it a matter that required reference. Rather, I infer that the Tribunal overlooked, and therefore did not address, the issue of whether the willingness of the Applicant to engage with interventions reduced his level of risk in determining whether the Applicant failed the character test.

Principles to be applied

41    It was common ground that, in determining whether the Applicant failed the character test pursuant to s 501(6)(d)(i), the Tribunal was required to engage in a forward-looking assessment of the risk of the Applicant engaging in criminal conduct in Australia. In undertaking that task, the decision-maker is to consider the nature and circumstances of the past offending, but also the present or likely future circumstances of an individual which may bear on the risk of whether the past offending conduct might or might not be repeated: CKL21 v Minister for Home Affairs (2022) 293 FCR 634; [2022] FCAFC 70 at [74] (Moshinsky, O’Bryan and Cheeseman JJ); Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595; [2019] FCAFC 132 at [78] (Mortimer J).

42    In discharging its task, the Tribunal was required to have regard to the facts and arguments put forward by the Applicant as to why he did not fail the character test and consider them, attributing such weight or persuasive quality to them that the Tribunal thought appropriate: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1) at [24] (Kiefel CJ, Keane, Gordon and Steward JJ); Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 (MZYTS) at [38] (Kenny, Griffiths and Mortimer JJ); Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (WAEE) at [44] (French, Sackville and Hely JJ). If the Tribunal ignored or overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument, there may be jurisdictional error: Plaintiff M1 at [27] (Kiefel CJ, Keane, Gordon and Steward JJ); MZYTS at [36], [38].

43    As the Full Court stated in MZYTS (referring to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf)), the Court is entitled to take the reasons of the Tribunal “as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made”: at [49], citing Yusuf at [10] (Gleeson CJ), [34] (Gaudron J) and [68] (McHugh, Gummow and Hayne JJ). As the Tribunal’s reasons set out what the Tribunal itself considered important and material, “what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error”: MZYTS at [49], citing Yusuf at [10] (Gleeson CJ), [44] (Gaudron J) and [69] (McHugh, Gummow and Hayne JJ). Similarly, in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), the Full Court (Perram, Murphy and Lee JJ) stated (at [76]) that:

The written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account. If something is not mentioned it may be inferred that is [sic] not been considered or taken into account …

In an appropriate case, the failure of an administrative decision-maker to have regard to relevant material can give rise to an implication that the Tribunal has constructively failed to exercise its jurisdiction in forming the state of satisfaction required by the Act: Sabharwal at [85].

44    That is not to say that the Tribunal was required to advert to, and expressly address, all the evidence and each of the submissions put before it; it is clear from the authorities (eg, Plaintiff M1 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ) and WAEE at [46]) that this is not required. But where a substantial contention has been advanced and is simply not addressed at all by the Tribunal in its reasons, the question arises as to whether it is to be inferred that the Tribunal overlooked that matter, or that the Tribunal considered it insufficiently significant or lacking in merit to warrant being addressed expressly: eg, Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [31] (French CJ and Kiefel J, with whom Heydon and Crennan JJ agreed at [91]–[92]) and [69] (Gummow J, with whom Heydon and Crennan JJ also agreed), as explained by the Full Court in MZYTS at [51]–[53]. Statements by a decision-maker to the effect that all material has been considered, but not referred to can be taken into account, but do not immunise a decision-maker from challenge and the reliability of such statements is to be assessed according to all of the circumstances: XA v Minister of Home Affairs (2019) 274 FCR 289; [2019] FCAFC 166 (XA) at [199]–[202] (Thawley J).

45    An inference that the Tribunal has failed to consider an issue may be drawn from its failure to deal expressly with that issue in its reasons: WAEE at [47]. Of course, in considering whether such an inference is to be drawn, it must be remembered that the Tribunal is an administrative body, and its reasons are to be read in a practical and common-sense manner, and not “with an eye keenly attuned to the perception of error”: see, eg, Sabharwal at [76]. An inference that the Tribunal failed to consider an issue should not be drawn too readily where the reasons are “otherwise comprehensive and the issue has at least been identified at some point”: WAEE at [47].

Dr Kwok’s report only addressed the risk of reoffending without interventions

46    The Tribunal was invited by both parties to, and did, accept the evidence of Dr Kwok, a psychologist, regarding the risk of the Applicant reoffending. This was relevant both to whether or not the Applicant passed the character test and, if he did not, the exercise of the discretion, having regard to the terms of Direction 110. There was other evidence before the Tribunal regarding the risk of the Applicant reoffending — including a pre-sentencing report — but the parties both accepted that Dr Kwok’s opinion was the most recent in time, and up-to-date, assessment.

47    Dr Kwok’s report was dated 7 January 2025, which was only two weeks before the hearing before the Tribunal on 21 January 2025 (contrary to the Minister’s submission that the report was available three weeks before the hearing).

48    The Tribunal quoted the conclusion of Dr Kwok’s report at T [34], which encapsulated her assessment of the Applicant. The critical dot point of the summary was Dr Kwok’s conclusion that the Applicant “has a low/moderate risk of reoffending (i.e. the lower end of the moderate risk level) without intervention” (emphasis added). Earlier, in the body of her report (at [49]), Dr Kwok set out her conclusions concerning the Applicant, again framed in terms of the risk of him reoffending “if he does not receive intervention”.

49    Dr Kwok’s report, and her summary, which was quoted by the Tribunal, recommended that the Applicant have “psychological treatment” to address healthy relationships, sexual offending and emotional/behavioural regulation. This concluding summary followed an earlier section of Dr Kwok’s report (at [62]–[63]), wherein Dr Kwok set out her recommendations in relation to the psychological treatment that the Applicant should attend, and how he might access such treatment.

The Tribunal’s reasons did not address the interventions issue

50    In its reasons addressing the topic “Does the Applicant pass the character test?”, the Tribunal set out the criminal history report for the Applicant, then referred to the complications arising regarding the application of s 501(6)(d)(i) from the fact that, whatever the outcome, the Applicant would (for the time being) remain in the community in Australia (T [19]–[23]). The Tribunal then set out aspects of Direction 110 bearing on the risk of future conduct, and quoted at length from various cases (T [24]–[31]).

51    The Tribunal set out its reasoning as to why the Applicant did not pass the character test in two paragraphs. The first paragraph (T [34]) comprised a verbatim quotation of the concluding summary paragraph of Dr Kwok’s report. The second paragraph (T [35]) was in the following terms:

The Tribunal accepts the expert evidence of Dr Kwok that the Applicant has a low/moderate risk of reoffending (i.e. the lower end of the moderate risk level). I find that there is a risk that, if the Applicant is allowed to remain in Australia , the Applicant may engage in criminal conduct in Australia. Thus, the Applicant does not pass the character test.

The Applicant’s case before the Tribunal and the course of the Tribunal’s hearing clearly raised the interventions issue (and the Cox’s Bazar issue)

52    The Applicant’s Statement of Facts, Issues and Contentions (SFIC) was prepared before Dr Kwok’s report was available. The Applicant’s SFIC did, however, contend that there was a negligible risk of the Applicant reoffending, and recorded that the Applicant gave evidence that he was motivated to comply with the law so as to be able to bring his stateless family to Australia from Cox’s Bazar. The Applicant’s SFIC (albeit in relation to the course the Tribunal should take if it rejected the Applicant’s contention that he passed the character test) referred to the self-‍improvement courses he had taken.

53    The Applicant’s evidence before the Tribunal included a statement of his dated 13 June 2023, in which he expressed a willingness to undertake further rehabilitation, as well as a pre-‍sentencing report which observed that the Applicant had shown a willingness and ability to seek intervention with a psychologist, a men’s behaviour change program, and to engage in programs as directed. The Applicant’s SFIC foreshadowed that a forensic psychological report had been commissioned, and would be provided as soon as it was available. As mentioned, the report of Dr Kwok was provided to the Tribunal.

54    The Minister’s SFIC referred to the interventions issue, contending that there was a lack of any clear plan regarding the Applicant’s rehabilitation. It also referred to the matter of the Applicant’s family, noting that the situation in relation to his family was the same as it was at the time of his offending.

55    The transcript of the hearing before the Tribunal records that Dr Kwok’s cross-examination by counsel for the Minister addressed the question of how effective therapeutic interventions would be for the Applicant given his lack of mental health education and vocabulary in which to express himself in that domain, as well as the likelihood that the Applicant would access suitable therapeutic interventions in those circumstances.

56    In the course of Dr Kwok’s oral evidence, the Tribunal had an extended exchange with her regarding the risk of the Applicant reoffending in light of his ability to access interventions. The matter which was the focus of the Tribunal’s questioning of Dr Kwok was whether the Applicant’s ability to access interventions, and his risk level, was affected by whether or not he was successful in his application, or remained on a BVR.

57    Accordingly, it is apparent that the likelihood of the Applicant being able to access interventions, and their likely efficacy, was exposed before the Tribunal through the questioning of Dr Kwok.

58    The Applicant’s position in closing submissions before the Tribunal was that Dr Kwok’s report did not mean that the Applicant necessarily failed the character test. As the transcript of the hearing before the Tribunal records, his counsel submitted, inter alia, that:

(1)    The threshold for passing the character test cannot be “no risk” because everyone is at some risk of offending.

(2)    Dr Kwok’s opinion was expressly qualified on the basis that that was her assessment of the Applicant’s risk of reoffending, “without intervention”. The Applicant was willing to undertake intervention, noting that he had undertaken counselling while in detention, and had undertaken various courses. The Applicant would have better access to interventions if he was on a RoS visa (as compared with the BVR visa, whose conditions contributed to the Applicant being reluctant to go out in public).

(3)    The Applicant’s family was in Cox’s Bazar in Bangladesh, living under very difficult conditions, and his hope to ultimately bring his family to Australia would motivate him to comply with Australian law in the future.

59    The Minister’s closing submissions contended, inter alia, that:

(1)    The Applicant’s visit to Cox’s Bazar, which was said to have shown him the conditions his family was living under, took place before his relevant offending, so was not really an effective deterrent to breaching Australian law. The Minister said that the Tribunal was required to consider the submission of the Applicant regarding the potential to bring his family to Australia under a RoS visa.

(2)    Dr Kwok’s opinion in her report was expressed on a “without interventions” basis, but she already took into account the counselling that the Applicant had engaged in while in detention. Dr Kwok’s oral evidence was not to the effect that his risk of reoffending depended on which visa pathway he was on, and Dr Kwok’s evidence was not to the effect that it would be harder for the Applicant to access interventions under a BVR; rather, her evidence only referred to interventions in Australia as she was unable to comment on the availability of interventions in other countries.

60    Having regard to these matters, in my assessment:

(1)    The Applicant clearly contended that, while Dr Kwok assessed his risk as being at the lower end of the moderate risk level “without intervention”, he was willing to access therapeutic interventions and this was something the Tribunal should take into account in assessing the risk of him reoffending.

(2)    The Applicant clearly contended that his desire to bring his family to Australia from the harsh conditions of the Cox’s Bazar camp was a protective factor militating against the risk of reoffending, and that the Tribunal should take that into account in assessing the risk of him reoffending.

61    The point about interventions being a material point raised by the Applicant is reinforced by the other aspects of the way the case unfolded before the Tribunal, referred to above (including the Tribunal’s own questioning of Dr Kwok, and the Minister’s submissions, in addition to the Minister’s SFIC).

62    Albeit to a lesser extent, the course of the proceeding before the Tribunal also revealed the point about the Applicant’s family and Cox’s Bazar, to be a point on which the parties were at odds.

Should an inference be drawn that the Tribunal overlooked the interventions issue?

63    The proceeding before the Tribunal ran on the basis that there was substantial overlap between the risk of reoffending, as it was relevant to the character test, and as it was relevant to the first primary consideration under Direction 110 (protection of the Australian community from criminal or other serious conduct). In view of this matter, and the need to consider a Tribunal’s reasons as a whole and in a common-sense and practical manner, I have taken into account the whole of those reasons in considering whether the Tribunal considered, at any point, the two matters in question and, if not, what is to be inferred from that omission.

64    The Tribunal’s reasons did not, at any point, refer to the question of the risk of reoffending in light of the qualification of Dr Kwok’s opinion regarding interventions and the contention that the Applicant was willing to engage in therapeutic interventions. The question of interventions was not mentioned at all by the Tribunal in addressing whether the Applicant passed the character test, and it was not mentioned at all by the Tribunal at any other point in its reasons.

65    Having regard to the way the Applicant’s case was put before the Tribunal, and the course of the Tribunal hearing (including the questioning of Dr Kwok and the parties’ closing submissions), the question of what the risk of reoffending was on a “with interventions” basis was a substantial issue before the Tribunal. As set out above, a Tribunal’s reasons are usually approached on the basis that the reasons set out the matters that the Tribunal considered in reaching its decision, although failure to refer to a particular matter cannot lead to an inference that it was overlooked in a variety of circumstances: see above at paragraphs 41–45.

66    Here, the question of interventions was not addressed at all by the Tribunal, and the Tribunal’s reasons on why it considered that the Applicant failed the character test cannot be described as “comprehensive”; they were scant, and amounted to no more than an adoption of Dr Kwok’s conclusions. The point here is not that the Tribunal should have expended more words, or set out more of Dr Kwok’s evidence, but that the paucity of reasoning supports the Applicant’s case that the inference should be drawn that the Tribunal overlooked the interventions issue (as opposed to inferring that the Tribunal considered it, but did not think it necessary to say anything in its reasons about it).

67    In these circumstances, I infer that the Tribunal overlooked the interventions point in assessing the risk of the Applicant reoffending in assessing whether the Applicant failed the character test by reference to s 501(6)(d)(i). I reject the Minister’s contention that the failure of the Tribunal to address the question of interventions at all was simply a case where the Tribunal gave particular weight to a particular aspect of the evidence.

68    The Tribunal stated (T [17]) that it had “considered all of the relevant material” but had “not discussed each potentially relevant document” in its reasons, but had “referred to the evidence which was considered to be the most relevant to the decision”. Consistent with the approach outlined in XA (see paragraph 44 above), the inclusion of such formulaic statements does not insulate a decision from review. Here, the inference I have drawn stands notwithstanding the inclusion of this paragraph. The issue raised by Ground 1 is not merely a failure to refer to a specific piece of evidence. It is a failure to consider a substantial contention advanced by the Applicant.

69    I also do not accept the Minister’s contention that, because the Tribunal was required to assess the risk posed by the Applicant at the time his case was before it and, at that point, the Applicant had not undertaken interventions, the Tribunal could disregard the interventions issue as one that it did not need to address (see paragraph 41 above). The question of interventions bore directly on the level of the risk that the Applicant would reoffend.

Whether the Tribunal engaged in jurisdictional error

70    In a case such as the present, a failure by the Tribunal to consider a relevant matter will amount to jurisdictional error, thus rendering it liable to be set aside, only if the error was “material” to the decision. That is, there must be a “realistic possibility that the decision that was made in fact could have been different if the error had not occurred”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT) at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) (emphasis in original). The so-called “threshold of materiality” is not a demanding or onerous one. If the possibility of a different outcome is “realistic”, in the sense that it is not “fanciful or improbable”, the threshold will be met: see LPDT at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). It follows, however, that an error will not be “material” if there was a separate basis for the Tribunal’s decision that was unaffected by the error: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [35] (Kiefel CJ, Gageler and Keane JJ).

71    Here, the risk of the Applicant reoffending was central to the Tribunal’s assessment of whether the Applicant failed the character test. I am satisfied that, had the Tribunal considered the interventions issue, its assessment of the Applicant’s risk of reoffending and, therefore, its assessment of whether the Applicant satisfied the character test, could have been different. No consideration was given to whether the Applicant fell within any of the other grounds in s 501(6) of the Act so as not to satisfy the character test. Accordingly, in my view, in failing to consider the interventions point at all, the Tribunal failed to discharge the task and function accorded to it by Parliament, and engaged in jurisdictional error.

72    In view of this conclusion on the interventions issue, it is not necessary to address the balance of the Applicant’s contentions on Ground 1, including the contention raised in connection with the Applicant’s desire to bring his family to Australia from Cox’s Bazar as a protective factor, moderating his risk of reoffending.

Conclusion

73    The Applicant will be granted an extension of time in which to lodge his application for review, and the application for review will be allowed. The parties are to submit orders giving effect to these reasons.

Associate:

Dated:    12 March 2026