Federal Court of Australia

ZKDP v Minister for Immigration and Citizenship [2026] FCA 502

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to quash the decision of the Administrative Review Tribunal dated 7 March 2025.

2.    A writ of mandamus issue requiring the Administrative Review Tribunal to determine the Applicant’s application for review of the decision not to revoke the cancellation of the Applicant’s Global Special Humanitarian (Class XB) (subclass 202) visa according to law.

3.    The First Respondent pay the Applicant’s costs of the application, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

OWENS J:

1    The applicant is an Afghan citizen who was born in Pakistan and spent the early years of his life moving between Pakistan, Afghanistan, and Iran. He arrived in Australia in 2013 at the age of 14. He has lived here ever since without becoming a citizen.

2    On 9 May 2022, the applicant was convicted on two charges of supply prohibited drug (large commercial quantity) and was sentenced to an aggregate sentence of seven years and six months’ imprisonment. As a result, the applicant failed the “character test” specified in section 501(6) of the Migration Act 1958 (Cth), in that he had a “substantial criminal record” as defined in section 501(7) of that Act.

3    Having satisfied him or herself of that fact, on 27 June 2023 a delegate of the Minister cancelled the Global Special Humanitarian (Class XB) (subclass 202) visa that been granted to the applicant upon his arrival in Australia. The applicant then made representations to the Minister seeking revocation of the cancellation decision pursuant to section 501CA(4) of the Act. On 13 December 2024, another delegate of the Minister determined not to revoke the cancellation of the applicant’s visa.

4    The applicant then sought review of that decision in the Administrative Review Tribunal. On 7 March 2025, the Tribunal affirmed the delegate’s decision not to revoke the cancellation decision.

5    By these proceedings, the applicant seeks judicial review of the Tribunal’s decision. The jurisdiction to do so is conferred by section 476A(1)(b) of the Migration Act, and is, pursuant to section 476A(2), the same as the jurisdiction of the High Court under section 75(v) of the Constitution.

THE GROUNDS OF REVIEW

6    The applicant advances six grounds of review. They each relate to the Tribunal’s determination that there was not “another reason” why the cancellation of the applicant’s visa should be revoked, for the purposes of section 501CA(4)(b)(ii) of the Migration Act. The applicant described them as six particulars of the one error, being a failure to comply with section 499(2A) (that is, a failure in six respects to comply with a direction issued by the Minister under section 499(1), being Direction No. 110 (“Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”)).

Grounds One to Four

7    Grounds one to four were presented as variations on a single theme, in that they were all concerned with the Tribunal’s reasoning in relation to the legal consequences of its decision, or the extent of the impediments that would be faced by the applicant if he were to be removed from Australia.

8    Those considerations are made mandatory “other considerations” by clause 9(1) of Direction No. 110, which states:

In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

(a)    legal consequences of the decision;

(b)    extent of impediments if removed; …

9    The applicant had submitted to the Tribunal that the legal consequences of a decision not to revoke the cancellation of his visa had to be assessed in light of the fact, as he contended, that he had been recognised to be owed non-refoulement obligations. The consequence was that, on the applicant’s case, he would not be removed to Afghanistan (or, indeed, from Australia). In particular, the Statement of Facts, Issues and Contentions filed on his behalf in the Tribunal said:

The Department has recognised that the Applicant is owed non-refoulement obligations through the grant of the Applicant’s humanitarian visa. It is the policy of the Respondent not to return people to places of harm in breach of Australia’s non refoulement obligations. As such, the Respondent will not return the Applicant to Afghanistan. There is no evidence that the Applicant has a right to enter any other country.

The Applicant does not intend to apply for a protection visa, as he is already recognised as being owed non-refoulement obligations.

The Applicant’s situation is covered by NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ). There is no evidence that it is reasonably practicable in the reasonably foreseeable future to remove the Applicant from Australia. As such, it is submitted that if the visa cancellation is not revoked, when paroled the Applicant cannot be administratively detained under the Act. Instead, he would be in the community on a Bridging Visa R (BVR).

10    The Tribunal dealt with this aspect of the applicant’s case, broadly as follows (at [108]-[123]):

(a)    The Tribunal held that the visa that had been granted to the applicant when he arrived in Australia (and which he had continued to hold at all times until it was cancelled) was not a “protection visa” as defined by the Migration Act, and that the applicant had not had a protection finding made in relation to him. There was thus no protection finding that would prevent the applicant’s removal from Australia.

(b)    There was no other evidence that, in the event the cancellation decision was not revoked, the Minister intended to release the applicant into the community on a bridging visa.

(c)    The Tribunal did accept that, by his submissions, the applicant had raised the issue of non-refoulement in relation to both Afghanistan and Pakistan. In that regard, the Tribunal referred to paragraph 9.1.2(2) of Direction No. 110, which provides:

… where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.

(d)    The Tribunal said that it was “not satisfied that there is sufficient evidence before it to make a proper determination of the non-refoulement issue” and thus determined to proceed on the basis contemplated by paragraph 9.1.2(2) set out above.

(e)    In those circumstances, the Tribunal identified the “immediate consequence” of a decision not to revoke the cancellation decision to be that “the Applicant will be liable to removal from Australia under s.198 of the Act and pending removal will be held in immigration detention under s.189”.

(f)    The Tribunal then went on to identify a range of contingent, or more remote, consequences, namely that:

(i)    The applicant may choose to apply for a protection visa, and pending determination of any such application, he would be held in immigration detention;

(ii)    If a protection visa were applied for, and granted, the applicant would be released into the community;

(iii)    If a protection visa were applied for, and refused with no protection finding being made, then the applicant would become liable to removal from Australia; and

(iv)    If a protection visa were applied for, and refused but with a protection finding being made, then the applicant may be held in immigration detention while other options were considered, or may be removed to a third country (including Nauru), or may be released into the community on a bridging visa with restrictive conditions.

11    The applicant’s basic point is that, amongst those more remote consequences, the Tribunal did not include the possibility that the applicant would, without applying for a protection visa, be released into the community on a bridging visa and/or become liable to removal to a third country (including Nauru).

Ground One

12    The applicant’s first ground of review was that the Tribunal “committed an error of law as it misapplied binding case law”. The “binding case law” to which reference was made was, I think, a reference to NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37. In the way that the argument was developed, however, the real complaint seemed to be that the Tribunal failed to consider one possible consequence of its decision (namely, as described above, that the applicant might be released into the Australian community on a bridging visa without having applied for a protection visa). The relevance of the decision in NZYQ to the argument was thus simply that it was an aspect of the circumstances from which the applicant submitted a possible consequence of the decision should have been found to exist (in the sense that, following the decision in that case, the Government had been granting bridging visas to persons who might otherwise be indefinitely detained), rather than as a statement of legal principle that was not followed.

13    The applicant did not contend before me that the Tribunal erred in failing to proceed on the basis that he had in fact already been found to be owed protection obligations by Australia, or in failing to find that he was owed such obligations, with the result that it should have found that he would be released into the community on a bridging visa if the cancellation decision was not revoked (that is to say, independently of a protection finding being made consequent upon an application for a protection visa). Rather, the submission was expressed as follows:

We say there’s just a range of outcomes that could have been or are possible as a consequence of the decision, and the Tribunal was obligated to consider each of them and discount them or remove them or not find they exist or find that they do exist. And we say that BVR was one of them. It wasn’t such a fanciful unlikely scenario … .

14    The precise way in which, absent a subsequent application for a protection visa, that particular outcome might eventuate was not expressed with clarity. But I understood the point to be that it was possible that the grant of the applicant’s humanitarian visa may (as a matter of fact, albeit not revealed by the evidence before the Tribunal) have involved a recognition of the existence of non-refoulement obligations, or that the Government, as a matter of policy, simply would not send a person on a humanitarian visa back to the country from which they had escaped. In any event, I do not think that the precise mechanism ultimately matters; it is enough to observe that the argument was that it was possible that the applicant would be released into the community on a bridging visa but no more than that.

15    An argument constructed on such a foundation, as the applicant accepted, runs straight into the problem identified in SSVJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 954 at [27] (Perram J) (in an aspect of his Honour’s reasons that was not in issue on appeal: Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45):

The applicant submitted that the legal consequences of the Minister’s decision were that he would be granted a Class WR Bridging R (Subclass 070) visa and that the Minister had not addressed this. I accept that the Minister was bound to take into account the legal consequences of the decision: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [9]-[10] per Allsop CJ and Katzmann J and at [177] per Buchanan J. However, I do not accept that the legal consequence of the cancellation was that he would be granted a Class WR Bridging R (Subclass 070) visa. Regulation 2.25AA(2) of the Migration Regulations 1994 (Cth) conferred on the Minister a power to grant the applicant such a visa but it was not a legal consequence of the cancellation of visa that the Minister might then exercise that power.

16    The applicant submitted that that reasoning was plainly wrong, but, far from that, I consider it to be plainly correct. If nothing else, it is consistent with Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs (2025) 99 ALJR 1378; [2025] HCA 36 at [14] (Gageler CJ, Edelman and Jagot JJ). Its application to the present case is a fortiori, in that there was no dispute in SSVJ that the applicant was a member of the so-called NZYQ cohort. Here, there is a prior uncertainty, as to whether the applicant is even a member of that cohort at all.

17    The Tribunal was not obliged to speculate about contingent possibilities about which the evidence was largely, if not entirely, silent. Such consequences are not legal consequences of the Tribunal’s decision. The Tribunal considered that the evidence before it was not sufficient to permit determination of the question of non-refoulement. It acknowledged that that question had been raised, and properly acknowledged that it, and its consequences, could be addressed at an appropriate future time. It only needed to address the legal consequences of its own decision, and it did so.

18    It follows that the first ground of review must fail.

Ground 2

19    The second ground of review was that the Tribunal failed to consider a relevant consideration (being that the applicant “would be liable for removal from Australia, with the identified country being Nauru”) and also took into account an irrelevant consideration (being that the applicant “would be liable to removal from Australia to Afghanistan”).

20    The second limb of this ground, that the Tribunal erred in taking into account the possibility of removal to Afghanistan, was abandoned by the applicant at the hearing.

21    Ultimately, ground two, as pressed, must fail for much the same reason that ground one failed. The possibility that the applicant might, depending on how a range of contingencies played out, be removed to Nauru was not a legal consequence of the Tribunal’s decision, and was too remote and speculative a possibility otherwise to require consideration as part of the consideration of whether the cancellation of the applicant’s visa should be revoked. Not only was the applicant’s membership of the so-called NZYQ cohort not established on the evidence before the Tribunal, nor was the prospect, even if he was, of him being removed to Nauru. In any event, on no view could removal to Nauru be regarded as a legal consequence of the Tribunal’s decision.

Ground 3

22    The third of the applicant’s grounds of review was that the Tribunal was said to have “failed to read, identify, understand, evaluate and/or make findings in respect of the Applicant’s submissions and evidence as to the practical and legal consequences if the Applicant’s visa cancellation was not revoked”. As developed in submissions, this ground was largely (although not entirely) an alternative expression of the same complaint that underpinned grounds one and two.

23    The aspect of this ground that overlaps in substance with grounds one and two, and which must fail for much the same reasons, is the submission that the Tribunal did not engage with the case advanced by the applicant in relation to what might broadly be described as the negative features, or disadvantages, of a bridging visa. For example, the applicant complained that the Tribunal did not take into account that, if he were granted a bridging visa, he would be statutorily barred from applying for another type of visa, he would likely become subject to restrictive conditions, his ability to secure employment, or a loan, may be reduced, and a range of other negative consequences. To the extent that those consequences would be legal consequences of the grant of a bridging visa (cf. Plaintiff S22/2025 at [14]), it does not follow that they are legal consequences of a refusal to revoke the cancellation decision. The Tribunal was not required to take them into account.

24    The additional aspect of the ground was put by reference to the decision in Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 (Perram J). The relevant aspect of that decision for the purposes of this part of the applicant’s argument was the holding that, where part of an applicant’s case is that they will suffer harm if returned to a particular country, then that case must be considered on its own terms (and not only as a claim to be owed non-refoulement obligations). As Perram J said at [28]:

Regardless of the non-refoulement claim (which required demonstration of a risk of harm at quite a high standard), the Minister still had to consider Mr Ezegbe’s case that if he were deported to Nigeria he would be harmed. It had to be weighed in the balance against the factors favouring his deportation. For example, a decision-maker could accept that Mr Ezegbe faced a risk of some serious harm falling short of the kind of harm which might enliven s 36(2)(aa) and nevertheless still use that as a consideration under s 501CA(4). By simply refusing to deal with any of the issues about what would happen to Mr Ezegbe if he were returned to Nigeria the Minister had failed to exercise the power.

25    Similar observations have been made in other cases too: see, e.g., Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [39]; GBV18 v Minister for Home Affairs (2020) 274 FCR 202; [2020] FCAFC 17 at [45]; DCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 395 at [38]. The relevant point was also expressed in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [39] (Kiefel CJ, Keane, Gordon and Steward JJ):

Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.

(citations omitted)

26    The arguments that need to be considered by the Tribunal depend, obviously enough, on the case that is put to it. As the Full Court observed in Omar at [34(h)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ):

In determining whether or not there is “another reason” why the visa cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii), while the Minister has a degree of “decisional freedom” as to what constitutes such a reason, he or she must consider whether a particular representation made by the affected person, which is clearly expressed and is significant, that they may suffer harm if returned to the country of origin constitutes “another reason” … .

27    In answer to this aspect of the applicant’s argument, the Minister relied on the fact that, as may be seen from the quotation from the applicant’s Statement of Facts, Issues and Contentions from which I have quoted above, the case the applicant presented to the Tribunal was that Australia had already recognised him to be owed non-refoulement obligations. That proposition was treated as an assumed premise, and was the foundation for the argument that the Tribunal needed to consider the applicant’s release into the community on a bridging visa, or his removal to Nauru, as the relevant consequences of the decision required to be made (and, negatively, that return to Afghanistan was not a possible consequence of the decision). It followed that, in the way it was presented, it was no part of the applicant’s case independently to satisfy the Tribunal that he was owed non-refoulement obligations (or that he would suffer harm if returned to Afghanistan).

28    The Minister submitted that that fact meant that the applicant did not sufficiently clearly put a case to the Tribunal, such as to require the Tribunal to deal with it, that he would suffer harm if returned to Afghanistan.

29    Ultimately, I consider the Minister’s submission to be too absolute. It is true that, as articulated in his Statement of Facts, Issues and Contentions, the applicant’s case was presented as if the question of the harm that he would suffer were he to be returned to Afghanistan had already been determined, with the result that Australia acknowledged he was owed protection obligations. But the Tribunal correctly understood that submission to raise a claim by the applicant that Australia should recognise that he was owed non-refoulement obligations. In other words, that claim was necessarily implicit in the particular submission that was advanced by the applicant. The applicant could not reasonably have been taken to have been making a case that went no further than an assertion that a particular decision had already been made; he was plainly asserting that the facts that justified that decision existed.

30    The material that the applicant placed before the Tribunal is consistent with that conclusion. Amongst that material was a “Personal Circumstances Form” completed by the applicant, which included the following statements (I have corrected obvious typographical errors):

(a)    “If I return back to my country I will be tortured and will be killed by Taliban.”

(b)    “I won’t survive from Taliban.”

(c)    “Australia gave me the opportunity to stay alive.”

31    The Tribunal was also provided with a statutory declaration of the applicant’s, that said:

I remember my early life being incredibly difficult. My grandfather had been murdered by the Taliban as he was a sergeant in the Afghan police force and was accused of working against the Taliban and for the West. My uncle was murdered after my grandfather – my uncle was travelling to another city and was pulled over at a check point. He was recognised as being my grandfather’s son and killed. As such, my family lived in fear of death.

…

In 2011, I witnessed a bomb explosion. I remember seeing parts of bodies lying around the street. It was awful.

32    That information was also reflected in the applicant’s Statement of Facts, Issues and Contentions (albeit in the section headed “Applicant’s Background”):

The Applicant is a 25-year-old Afghan Hazara man born in Baluchistan, Pakistan. The Applicant experienced significant upheaval, deprivation and trauma during his childhood. The Applicant and his family moved between Pakistan, Afghanistan and Iran in search of permanent safety. The Applicant’s grandfather was murder[ed] by the Taliban for being a sergeant, and later the Applicant’s uncle [was] murdered for being the son of a police officer.

In approximately 2009, when the Applicant was approximately 10 years old, the Applicant’s father left the family to seek safety in Australia and to then apply for his family to join him. This took approximately four years, during which time the Applicant’s mother struggled to properly provide for the Applicant and his three siblings (two brothers and a sister) (at the time). Also during this time, when the Applicant was approximately 12 years old, he witnessed a bomb explosion and the aftermath, including seeing severed body parts.

33    As I have already said, the Tribunal understood the applicant to have raised a claim that he was owed non-refoulement obligations. It said (at [115]):

The Applicant’s submissions … raise the issue of non-refoulement in relation to the Applicant. The Applicant’s evidence is that his grandfather, a sergeant in the Afghan police, was murdered by the Taliban and his uncle was also killed because of his relationship with his grandfather. The Applicant said that his family lived in fear of death in Afghanistan. … Accordingly, the Tribunal accepts that the Applicant has raised Australia’s international non-refoulement obligations in relation to … Afghanistan … .

34    Ultimately, the Tribunal decided (and no complaint is made about this) not to determine the question of non-refoulement obligations, on the basis that that issue would be resolved if and when the applicant applied for a protection visa. Even then, however, it acknowledged the continuing relevance of the applicant’s fear of harm should he be returned to Afghanistan to its decision. The relevant portion of the Tribunal’s reasoning, concerning the impediments that the applicant would face if returned to Afghanistan, was as follows (at [128], [132]-[133])

The Tribunal accepts that the Applicant’s home country is Afghanistan and if he is removed from Australia to Afghanistan he would face significant impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country.

…

He is likely to face emotional hardship due to his separation from his family and, although the Applicant’s fears of harm if returned to Afghanistan have not been assessed in the context of a protection finding, the fact that he holds grave fears for his safety is itself an impediment.

These impediments are significant, although removal to Afghanistan is not a certain outcome of a decision not to revoke the cancellation of the Applicant’s Visa. To the extent that it represents a possible outcome, the consideration of impediments if removed under Paragraph 9.2(1) of Part 2 of Direction 110 is a valid consideration and warrants substantial weight in assessing whether there is another reason to revoke the cancellation of the Applicant’s Visa under s.501CA.

35    The applicant submitted (correctly) that that reasoning does not involve any assessment of his claim that he is at risk of serious harm in the event that he is returned to Afghanistan. That is to say, while the Tribunal acknowledged that he held fears of serious harm, it did not consider whether those fears were well-founded, whether the feared risk of harm in fact existed, or make any assessment of its nature, magnitude or likelihood. It follows that it did not take that risk of harm (assuming it had been satisfied that it existed) into account in assessing the impediments that the applicant would face if returned to Afghanistan. The Tribunal, in other words, stopped at the point of finding that the existence of a fear was an impediment, when it needed also to consider whether the harm that was feared also constituted an impediment. Another way of looking at the same point is that the Tribunal failed to engage fully with the legal consequences of its decision, namely the return of the applicant to Afghanistan. Either way, the Tribunal’s consideration of whether there existed “another reason” why the cancellation decision ought to be revoked miscarried.

36    The Tribunal thus appears to have reasoned on the basis that, having deferred the question of non-refoulement, there was no need to consider further the risk of harm that underpinned that claim. But, as Plaintiff M1/2021 and the other cases to which I have referred above demonstrate, that was not so. The factual claims concerning the harm that the applicant may suffer if returned to Afghanistan had to be determined and weighed in the balance.

37    (I note for completeness that the Minister did not submit that any such error, if it occurred, was not material.)

38    It follows that, for those reasons, I would uphold ground three.

Ground 4

39    The applicant’s fourth ground of review was that the Tribunal’s “reasoning relating to the other considerations of legal consequences and extent of impediments if removed was based on illogical and / or irrational reasoning”.

40    The first argument advanced under this ground was that the Tribunal erred in proceeding on the basis that the applicant might apply in the future for a protection visa. It was submitted that:

Here, the applicant apprised the Tribunal of his intention not to apply for a protection visa. While the Tribunal was entitled to defer assessment of non-refoulement obligations on the basis of “if and when” an application for a protection visa is made, having been apprised of the knowledge that no protection visa application was to be made, it should have conducted an assessment on that basis. In the face of knowledge that a protection visa application would not be made, the Tribunal’s reasoning in respect of these issues is legally unreasonable.

41    I do not accept that submission. The applicant informed the Tribunal that he “does not intend to apply for a protection visa, as he is already recognised as being owed non-refoulement obligations”. The intention so communicated was not unequivocal. It was explained on the basis of a particular assumption (i.e., that the existence of non-refoulement obligations had already been determined). The Tribunal found that that assumption had not been established (and no error is alleged in that respect). It was not unreasonable for the Tribunal to proceed on the basis that, in circumstances where the question of non-refoulement had not yet been determined, the applicant may apply for a protection visa.

42    The second argument advanced in relation to this ground of review was that “the Tribunal does not appear to have grappled in a meaningful way [with] the ‘extent of impediments’ if he is in fact removed to Afghanistan viz-a-viz his mental health and trauma”. The relevant aspects of the Tribunal’s conclusions are at [129] and [133] (and they should be read, obviously enough, with the earlier, and more detailed, account of the evidence of, in particular, the applicant and Dr Kwok at [24]-[25]):

The Applicant is 24 years of age. He has not disclosed any diagnosed physical or psychological conditions, but he has demonstrated a vulnerability to drug addiction and there are some mental health concerns referred to by Dr Kwok regarding the hardships and trauma he experienced before coming to Australia and the claim that he was raped when in high school. These matters represent an impediment to the Applicant establishing himself in Afghanistan.

…

These impediments are significant … .

43    The Tribunal accorded them “substantial weight” (at [133]).

44    I do not consider that the Tribunal’s decision reveals a failure to engage substantively, in a reasonable manner, with the issue. Indeed, the Tribunal can be seen as having accepted the full force of the applicant’s evidence insofar as it was relevant to this issue.

45    It follows that ground four fails.

Ground Five

46    The fifth ground advanced by the applicant concerned the Tribunal’s approach to the question of his risk of recidivism. That is a mandatory relevant consideration pursuant to paragraph 8.1.2(2) of Part 2 of Direction No. 110. It was contended that the Tribunal’s assessment of that issue “was based on illogical and / or irrational reasoning, and / or was based on irrelevant considerations and / or did not consider relevant considerations”. The applicant submitted that the ground “boils down to the Tribunal’s misapprehension of the applicant’s evidence in relation to his attempts for rehabilitation”.

47    A challenge, like this one, to the Tribunal’s findings of fact may raise complicated questions. Not all illogical or irrational findings of fact will constitute jurisdictional error: see, e.g., EUD24 v Minister for Immigration and Citizenship (2025) 311 FCR 155; [2025] FCAFC 128 at [34]-[36] (Hill J). Ultimately, for the reasons set out below, it is not necessary to descend into such complexity here.

48    The impugned findings of fact were the following (at [72], [78]-[79]):

The Tribunal notes that the Applicant has indicated his willingness to undertake ongoing treatment and counselling, as determined by Corrections Services and his parole officer. When asked what he planned to do to prevent a relapse into drug use if he is released into the community the Applicant stated in his oral evidence only that he would spend time with his family and get a job and work hard. When pressed as to his specific plans he said that he had not been told specifically what programs he would be required to undertake but he expected they would be organised for him at night-time so that he could attend work. The Applicant’s evidence did not disclose that he had any clear self-motivation to undertake further rehabilitation but did indicate that he was prepared to comply with what was required of him. This is consistent with the observation of the Pre-Release Report that:

..despite believing that he does not need to address his substance use further, [the Applicant] has verbalised a willingness to undertake intervention in the community.

…

… However, the professional assessment is that he requires ongoing counselling and treatment for his drug addiction and to address his past trauma. While he says he is willing to comply with these recommendations he has not demonstrated that he is self-motivated to do so. If he relapses into drug use he has shown in the past that he has not been deterred from offending by previous convictions nor the threat of imprisonment.

… The Applicant’s commitment to treatment appears to be essentially passive. He has said he will do what he is required to do under the terms of his parole but has not demonstrated an independent commitment to seeking treatment.

49    The applicant submitted that the Tribunal’s conclusion that the applicant was lacking in self-motivation for treatment was inconsistent with the evidence. Particular reliance was placed on three matters, namely that:

(a)    He had taken part in the Intensive Drug and Alcohol Treatment Program while in prison, which was a voluntary program, and which required the applicant to be assessed for suitability (and in particular for what were described as “responsivity factors”);

(b)    He tried to access mental health support while incarcerated, but had difficulty in doing so for various reasons;

(c)    When asked by the Tribunal about his plans to prevent a relapse into drug use, he did not say that he “expected” his parole officer to organise rehabilitation programs outside of work hours for him in the sense that he was demanding that such programs not interfere with his work; he was simply observing that he would need to balance his need to earn a living and to engage in drug rehabilitation (consistently with a willingness to engage in such treatment).

50    The evidence to which the applicant has referred was, of course, only some of the totality of the evidence relevant to this topic before the Tribunal. I am satisfied that the Tribunal had regard to all of the evidence in reaching its conclusions, and that, in the context of the evidence as a whole, there is nothing illogical or irrational about the conclusions to which it came. In particular, I note that:

(a)    The Tribunal referred to the applicant’s participation in the Intensive Drug and Alcohol Treatment Program (at [52]), including by reference to the assessment of the applicant by the psychologist and facilitator of the program, and found that that was a “positive indication” (at [54]).

(b)    While the Tribunal did not specifically mention the applicant’s evidence of his attempts to access mental health treatment while he was on remand, it did find that the evidence showed that the applicant had “taken steps while in prison to rehabilitate himself” (at [78]).

(c)    The interpretation given by the Tribunal to the applicant’s evidence about his attitude to the programs to be organised by his parole officer was one that was open to the Tribunal in the context of the evidence as a whole.

51    The Tribunal had regard to all of the evidence, and in particular to the applicant’s history of drug addiction and participation in drug programs. The Tribunal’s reasoning was neither illogical or irrational in that overall context. It is not enough for the applicant to demonstrate that a different Tribunal might have come to a different conclusion on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135] (Crennan and Bell JJ). At best, that is all the applicant has shown in connection with ground five.

52    It follows that ground five does not succeed.

Ground Six

53    The sixth and final ground advanced by the applicant is that the Tribunal “failed to consider a relevant consideration, being that the Applicant’s father and other family members had telephone communications with the Applicant during his imprisonment”.

54    The Tribunal recorded, at [68], that the applicant, in his evidence, “confirmed that he was first visited by his father in prison in February 2025 and had not spoken to him since before his arrest in March 2021”. It then went on to find, at [69], that the applicant “had no direct contact with his parents for almost four years while he was in prison. The reconciliation between the Applicant and his family is clearly in its early stages”.

55    The applicant submitted that, while it was correct that his father came to see him in prison in person for the first time in February 2025, the finding that he had no previous contact with his father while he was in prison was inconsistent with a letter to the Department from Communities & Justice NSW, dated 26 September 2023, which said that the applicant had “regular telephone contact primarily with friends and occasionally with his father and cousin”. No transcript of the applicant’s evidence at the hearing was tendered or otherwise available in the present proceedings.

56    At most, the aspect of the Tribunal’s decision that the applicant challenges involves an ordinary instance of fact-finding, where the Tribunal has evidently preferred the applicant’s evidence that he “had not spoken to [his father] since before his arrest in March 2021” over the letter produced by the Department of Communities & Justice. But in any event, I am not persuaded that the finding that the applicant “had no direct contact with his parents for almost four years while he was in prison” is inconsistent with the contents of the letter. Read in context, the reference in [69] to an absence of “direct contact” seems to me most naturally to refer to in person contact.

57    It follows that I do not think that the Tribunal found that the applicant had not communicated with his father, and there is, accordingly, no substance to the argument that the Tribunal failed to have regard to a relevant consideration.

58    Ground six, therefore, fails.

Conclusion

59    For the reasons I have given, a writ of certiorari will issue quashing the Tribunal’s decision.

Associate:

Dated:    24 April 2026