Federal Court of Australia

CGQJ v Minister for Immigration and Multicultural Affairs [2026] FCA 631

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    This is an application to quash the decision of the second respondent, the Administrative Review Tribunal (the Tribunal), affirming a decision by the first respondent (the Minister), not to revoke the cancellation of the applicant’s Class BA Subclass 200 (Refugee) visa (refugee visa). The applicant also seeks to have the matter remitted to the Tribunal for reconsideration.

2    The applicant was born in 1986, in what was then Sudan (now South Sudan). In 1994, the applicant moved to Egypt due to the civil war. In 1997, he arrived in Australia with his parents and siblings after they had all been granted refugee visas.

3    The applicant is of Dinka ethnicity, a Catholic, and a member of the wider South Sudanese community in Australia. He has a large number of supportive family members, many of whom are either Australian citizens or permanent residents.

4    More than twenty years ago, in July 2005, the applicant was found guilty of having committed murder, in September 2003 following a trial by jury in the Supreme Court of Victoria. He was imprisoned for 18 years.

5    On 24 March 2017, the applicant’s refugee visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). He made representations through his then legal representative seeking revocation of the cancellation decision.

6    Thereafter:

(a)    on 25 February 2020, the Minister decided under s 501CA(4) of the Act not to revoke the earlier cancellation decision;

(b)    the applicant then applied to the Tribunal for review of the Minister’s non-revocation decision;

(c)    on 3 February 2025, the Tribunal affirmed the Minister’s non-revocation decision (the Tribunal Decision or TD): see CGQJ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 56; and

(d)    on 4 March 2025, the applicant applied to this court for review of the Tribunal’s decision.

7    Ms ER Tadros of counsel and Mr M Kenneally of counsel appeared pro bono for the applicant at the hearing before me.

8    Mr A Solomon-Bridge of counsel appeared with Ms K Chan of counsel for the Minister.

9    On 12 March 2025, the second respondent filed a submitting notice.

10    For the reasons set out below, the application is to be dismissed.

The applicant’s conduct

11    As I have mentioned above, the applicant was found guilty of committing murder in September 2003. At the time of the murder, he was 17 and a half years old, and on bail.

12    In his sentencing remarks, Kaye J stated that the stab wounds inflicted were “vicious … with the intention of killing [the applicant’s] helpless victim”, and that the circumstances of the murder were “particularly callous”.

13    His Honour stated that the applicant’s conduct was a “particularly serious instance” of the crime of murder against an innocent adolescent in circumstances where the applicant had no cause to attack the deceased, the attack was premeditated and the victim had no opportunity to defend himself. His Honour also noted that the applicant “displayed manifest pleasure” in the conduct of the crime.

14    Regarding the applicant’s possession of a weapon at the time of the murder, Kaye J said at [9]:

A further relevant circumstance in this case concerns the fact that you actually had a knife in your possession on that night at all. Five days previously, you had been searched by Senior Constable Ure of Footscray Police, and found to possess a large carving knife, secreted in your pocket. He had taken that knife off you, and warned you that it was illegal to carry a knife. Thus on the evening in question you knew full well that your possession of the knife was unlawful.

15    The applicant was also convicted for possessing a controlled weapon without excuse in April 2004, for offending prior to the murder in September 2003. In his statement dated 13 March 2024, the applicant said that he was carrying a knife for self-protection.

16    Justice Kaye characterised the applicant’s conduct as follows, at [10]:

Your brazen and totally unjustified attack on the deceased man and his two companions going about their lawful business was utterly unacceptable. Your use of a knife was a contravention of a basic standard and value of our society. You took the life of an innocent and decent young man. Your conduct violated the most fundamental norm of civilised behaviour.

17    The applicant was sentenced and, following an appeal, received a sentence of 18 years’ imprisonment, with a non-parole period of 14 years.

18    While in prison, the applicant was involved in several incidents, which were summarised in various Corrections Victoria reports in evidence before the Tribunal. It is not necessary to set them out here. It is sufficient to note that there were no fewer than 28 reported incidents, including the discovery of makeshift weapons in the applicant’s cell, involvement in various assaults, positive drug tests, and possession of drug paraphernalia.

The case before the Tribunal

19    In the applicant’s statement of facts, issues and contentions (SOFIC) dated 5 June 2024, it was submitted that the decision to cancel the visa gave rise to non-refoulement obligations, or in the alternative, the factual basis of his claimed risk of harm (irrespective of its characterisation as a non-refoulement matter) constituted a separate and sufficient ground for revocation of the cancellation.

20    At [31] of the SOFIC, the applicant referred to the following consequences if the decision to cancel the visa was not revoked:

The legal and human consequences that [the applicant] faces, if the Tribunal affirms the Delegate’s decision, are even more severe, disproportionate and nothing short of life-threatening. Essentially, a decision not to revoke the cancellation of the [the applicant’s] visa will plausibly result in:

a.     him remaining in immigration detention for an indefinite period of time in breach of his human rights and where his mental health will decline with an ‘elevated risk of impulsive suicidal or self-harming behaviour’; and

b.     an indefinite risk of refoulement, including constructive refoulement to the most severe forms of harm, including death, to a country where he has no ties, in breach of Australia’s international and domestic obligations; and

c.     if [the applicant] is ultimately released as a result of NZYQ, an indefinite period of instability as either ‘an unlawful non-citizen’ or as the possible future holder of a Bridging R visa which contains onerous conditions, breach of which would result in a mandatory prison sentence of at least 12 months and up to 5 years.

(Citations omitted.)

21    The consequences were further elaborated upon at [139]-[149] of the SOFIC, as it related to the risk of refoulement. The applicant submitted that in the absence of a protection finding pursuant to s 197C(3), the executive had a duty to remove the applicant to South Sudan as soon as reasonably practicable, regardless of whether he was owed non-refoulement obligations. The applicant submitted there were substantial grounds to believe he would be subject to torture and/or a real risk of irreparable harm if returned to South Sudan.

22    The SOFIC outlined Australia’s non-refoulement obligations, and stated that the applicant relied on his previous claim that non-refoulement obligations were owed to him, either cumulative or separately, on the basis of (at [142]):

(a)    his imputed political opinion due to his Dinka ethnicity and his father’s involvement in the civil war;

(b)    his race, being of Dinka ethnicity;

(c)    his religion as a Christian;

(d)    his mental health, being someone who would almost “inevitably experience a mental-health crisis” if forcibly separated from his entire family and support network and returned to South Sudan; and

(e)    his membership of the following social groups:

(i)    a returnee from a Western country, that is a person who has spent the majority of their life in a Western country, is not fluent in Dinka or Arabic and is unaware of the local customs and culture of South Sudan;

(ii)    being someone perceived to be foreign, an outsider and wealthy in South Sudan;

(iii)    being a male of fighting age, who would be at risk of forcible recruitment into tribal militia or for criminal gain in South Sudan.

23    The applicant further submitted that he would satisfy the narrower criterion for a protection finding as defined under ss 36 and 197C of the Act on the basis that he was a refugee, or because he met the complementary protection criteria.

24    The applicant submitted in his SOFIC that Direction 110 cannot in any way limit the considerations to which a decision maker may have regard to, and therefore, the Tribunal may consider the more generalised risk of harm, as outlined below.

179     Clause 9.2(1) of Direction 99 requires the Tribunal to ‘consider’ the extent of impediments if the applicant were removed and to ‘tak[e] into account’ the applicant’s ‘health’ (which would include mental health), substantial language or cultural barriers and any social, medical and/or economic support available to them. As explained in paragraph 24, Direction 99 cannot preclude the Tribunal from considering all the impediments that [the applicant] would face should he be returned.

180     As such, even if the Tribunal refuses to consider Australia’s non-refoulement obligations, it must nevertheless consider the underlying facts in support of there being ‘another reason’ why the Decision should be revoked given the extent of impediments [the applicant] would face if removed. Indeed, the Federal Court recently found that the Tribunal erred by failing to weigh non-refoulement obligations as part of the consideration of impediments on return on the basis that the Applicant would only return by “choice”. The Court found that such a finding by the Tribunal failed to engage with the human consequences and the reality of constructive refoulement.

181     We therefore refer to and repeat those submissions as part of this consideration.

182     The evidence before the Tribunal is overwhelming. [The applicant] would face the most severe conceivable impediments if he were returned to South Sudan.

25    The applicant made submissions to the Tribunal concerning the extent of the impediments, submitting that those impediments were broader in scope and were not confined to non‑refoulement considerations. In support of that position, the applicant relied on a 2004 Human Rights Watch report, which alleged that “South Sudan continued to face a dire human rights and humanitarian crisis”; referred to conflict and inter-communal violence, resulting in deaths, injuries and displacement and:

[i]mpunity continued to fuel violence, with civilians bearing the brunt of widespread attacks, systematic sexual violence against women and girls, the ongoing presence of children in fighting forces, and state-sponsored extrajudicial killings.

26    The applicant also cited the Australian government’s website, which was said to advise people not to travel to South Sudan due to the “dangerous security situation and the threat of armed conflict”, and “[k]idnapping, murder, shootings, home invasions, armed robbery, carjacking and sexual assault [which] are common throughout South Sudan, including in Juba”.

27    A Mr Newton gave expert evidence before the Tribunal that the applicant would experience a mental health crisis if forced to return to South Sudan, and he would not be able to obtain any mental health treatment there. He gave evidence that (at [186]):

In the context of a forced return to South Sudan, [the applicant] would almost inevitably experience a mental-health crisis. This would likely be characterised by a significant experience of emotional turmoil and overwhelming distress. It is difficult to predict in the abstract how he would cope with such a challenge, but it can be said with a reasonable degree of certainty that it would present a major threat to his mental equilibrium.

At the risk of stating the obvious, [the applicant] would require the provision of significant emotional support to manage the stress of such a forced relocation. It is likely, however, that even in optimal circumstances it would evoke severe distress and lasting upheaval.

28    In the applicant’s personal circumstances form dated 25 March 2018, the applicant indicated that he had concerns or fears about what would happen to him on return to South Sudan, in these terms:

My family fled South Sudan because of the war. I am afraid that I would be in danger or be harmed if I return. Some family members were killed and all of my family have left South Sudan because of the war. It is still a dangerous place to live. The war is still happening. Also, I will be targeted because I would be returning from the West. …

29    In his statement dated 12 January 2023, he reiterated those concerns as follows:

Harm if sent to South Sudan

26.     I believe if I am deported to a country I barely remember and don’t know anymore and also have no support network there at all, I believe deeply in my heart that I will not survive there alone because it is still a war torn country that have been going on century.

27.     I will be harmed on the basis of being Dinka (because there are many tribal conflicts) and will be unable to survive, because I do not speak fluent Dinka nor Arabic, which are the languages spoken. It will be very clear that I am foreign.

30    In his personal statement dated 13 March 2024, the applicant elaborated on this risk of harm if returned to South Sudan. The applicant said that he saw the news online about the current conflict in Sudan and stated that “[a] lot of people have died during the war. It is not a safe place to live and a very hard environment”. At [162], he stated:

If I was sent back to South Sudan, I don’t think that I would be able to survive. I only lived in Sudan for a short time when I was very young and before my family fled to Egypt. I don’t know the country or remember much from when I was living there as a child. I can’t speak Dinka fluently or Arabic, only English, and I rarely speak these languages to my family. I would not have housing so I would be homeless. I wouldn’t have a job so I wouldn’t have any income. If my family could send me even a small amount of money, like they do now, I am not sure how I can get that and what it would pay for. I am not sure where I could live that is safe. I don’t know who to ask for help or support as I have no family or friends or relatives there. I am not sure how to access medical treatment or mental health treatment. I would be worried about my security and safety in a third world country with a lot of fighting and violence.

31    The applicant also said he feared he would end up “homeless, without money and all alone in a very dangerous environment” and was concerned about the impact that this would have on his mental and physical health, and he would not know how to get help if needed (at [163]-[164]). The applicant also stated at [167] that he heard about other Dinka Christian men going back to Sudan who “do not last long”, and that “you can be picked out by the way that you speak, especially if you have lived in Australia and speak with an Australian accent”.

32    The applicant made further submissions to the Tribunal (Further SOFIC or FSOFIC) dated 30 July 2024, concerning the issue of refoulement. It is sufficient to note that the applicant submitted that the risk of refoulement, as a legal consequence, was real, foreseeable and direct, and the possibility that he may apply for a protection visa or obtain a protection finding would not fully protect him from that risk.

33    The applicant also provided examples of broader, generalised harm by reference to various reports including the United Nations Mission in South Sudan, “Quarterly Brief on Violence Affecting Civilians (April – June 2023)” dated 26 September 2023; the DFAT Country Information Report South Sudan dated 5 October 2016; and the South Sudan 2022 Human Rights Report, by way of example. These reports documented the human rights issues and humanitarian crises facing the population in South Sudan.

34    That country information was put forward on the basis that it supported the applicant’s submission that based on the conditions of South Sudan, he was a person who was owed non-refoulement obligations and an adverse decision could result in the prospect of death or serious harm if returned to South Sudan.

The Tribunal’s decision

35    The question before the Tribunal was whether the cancellation of the applicant’s refugee visa should be revoked under s 501CA(4) of the Act.

36    Section 501CA(4)(b) provided that the Minister must be satisfied that the applicant passed the “character test” or that there was “another reason”. It was unsurprisingly, uncontroversial that the applicant failed the character test due to his appalling criminal record. The Tribunal was therefore required to be satisfied that there was another reason to revoke the cancellation.

37    The Tribunal was required to apply Ministerial Direction No 110 (MD-110 or the Direction), which had been made under s 499 of the Act. Paragraph 6 of MD-110 provided that “a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision”.

38    Paragraphs 8 and 9 of MD-110 provided as follows:

8. Primary considerations

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

(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.

…

9. Other considerations

(1)     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;

c)     impact on Australian business interests

39    Paragraph 7(2) of the Direction, which outlined how to take relevant considerations into account, also relevantly stipulated as follows:

The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

40    Having considered in detail the relevant factual matters and evidence (see TD at [6]–[89]), the Tribunal dealt with each of the relevant considerations, as follows.

Primary consideration 1: Protection of the Australian community

41    “Primary consideration 1” is comprised of two limbs: “[t]he nature and seriousness of the conduct” and “[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct” (see MD-110, [8.1.1]–[8.1.2]).

42    The Tribunal considered each of these limbs separately, as follows.

Nature and seriousness of the applicant’s conduct to date

43    The Tribunal noted that, pursuant to paragraph 8.1.1(a)(ii), violent crimes against children are viewed very seriously by the Australian Government and the Australian community.

44    The Tribunal emphasised that the applicant’s conviction for murder, where the deceased victim was an adolescent aged 17 years, and the facts of that murder, constituted very serious offending and that it was “unnecessary to labour the seriousness”. Further, pursuant to paragraph 8.1.1(1)(b)(ii) the Tribunal considered that the victim and the applicant were both vulnerable members of the community by virtue of their age at the time of the offending.

45    Pursuant to paragraph 8.1.1(e), the Tribunal considered the frequency of the applicant’s offending where he committed the offence of possessing a controlled weapon without excuse prior to his imprisonment for murder, it being “proximate to the murder and exhibited a sharp increase in the seriousness of the offending”.

46    Given the serious nature of the applicant’s offence of murder, the Tribunal found that paragraph 8.1.1(1) of the Direction “weigh very heavily” against revocation of the cancellation of the applicant’s visa.

Risk to the Australian community should the applicant commit further offences or engage in other serious conduct

47    Paragraph 8.1.2(1) of the Direction provides that the Tribunal should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.

48    Paragraph 8.1.2(2) provided that in assessing the risk, the Tribunal must have regard to:

(a)    the nature of the harm should the individual engage in further criminal or other serious conduct;

(b)    the likelihood of the applicant engaging in the conduct described in (a); and

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

49    The Tribunal stated that the applicant’s offending was very serious and was “so serious that any risk that it may be repeated is unacceptable. However, the evidence does not point to a specific risk that [he] will again commit murder but rather it points to violent and general recidivism”.

50    The applicant’s risk of recidivism was stated to be at a low-moderate risk for violent recidivism and at a low risk of general recidivism. The Tribunal accepted that the applicant’s risk of reoffending would increase if he used unprescribed drugs or alcohol.

51    The Tribunal placed weight on the evidence of Mr Newton, particularly regarding alcohol, and the evidence that it would be “unwise” for the applicant to ever drink alcohol again “given the litany of problems which heavy drinking caused him”. The Tribunal noted that whilst the applicant has realised this himself, “the Tribunal is concerned that this realisation has only occurred very recently”.

52    The Tribunal accepted that illicit drug use is not “itself determinative of moral character” and “broadly accepting of the proposition that the use of illicit depressants does not generally give rise to violent offending of itself, as compared to stimulants”. However, the Tribunal noted that “drug seeking behaviour can give rise to dishonesty and property offences and property offences can involve incidental acts of violence with unintended consequences”.

53    The Tribunal noted that the applicant wanted to socialise with his family and it was “unnecessary to recount the evidence that has already been summarised regarding the comprehensive supports that CGQJ’s family, friends, and community wish to provide for him”. However, the Tribunal noted that if the visa cancellation was revoked, alcohol would be legally available and contact with “anti-social” people may be unavoidable, which would increase the risk of recidivism.

54    The Tribunal was satisfied that the applicant had achieved a level of rehabilitation recently, but noted that sustained involvements in numerous incidents in prison “was not indicative of a lengthy commitment to rehabilitation” and that the applicant’s approach to drugs “remains maladaptive”.

55    The Tribunal did not place weight on expert opinion that the applicant was rehabilitated, due to inconsistent facts, but the Tribunal did place weight on an expert’s evidence regarding the applicant’s first 120 days of abstinence from drugs. The Tribunal was “guarded” in accepting broad assertions regarding rehabilitation from friends, family and community members.

56    In considering whether to refuse to grant a visa under paragraph 8.1.2(2)(c), the Tribunal was directed to the “risk of harm that may be affected by the duration and purpose of CGQJ’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa” (at [110]). The Tribunal said that it was beyond its jurisdiction to grant a short stay visa, for these reasons:

112.     In relatively recent times, CGQJ has displayed an admirable trajectory in his course of rehabilitation. CGQJ moral character seems to have improved with his self-awareness, despite the hardships of immigration detention. The Tribunal does not doubt CGQJ sincerity to do good and help others.

113.     Unfortunately, CGQJ does not yet present at an acceptably low risk of recidivism if released back into the Australian community. He risks relapse into alcohol, or drugs. On the evidence before it, the Tribunal is reasonably satisfied that there is an unacceptable risk that CGQJ may re-offend if released.

114.     Noting the risk to the Australian community should CGQJ commit further offences, paragraph 8.1.2 of the Direction weighs very heavily against the revocation of the cancellation of CGQJ’s visa.

Conclusion: Primary Consideration 1

57    The Tribunal concluded that, when considered holistically, Primary Consideration 1 weighed “very heavily” against the revocation of the cancellation of applicant’s visa. See TD at [115]–[116].

Primary consideration 2: Family violence

58    Primary consideration 2 was not relevant.

Primary consideration 3: Strength, nature and duration of ties to Australia

59    In reference to paragraph 8.3(2)(a), the Tribunal noted that the applicant had resided in Australia since he was eleven, and prior to imprisonment, was active in the Sudanese Australian Integrated Learning program and the Sudanese community. The Tribunal noted the evidence that the applicant was “polite, deferential, caring and responsible”, contrasted to the “manifest pleasure” he displayed when stabbing the deceased. An explanation for the contrast was due to his “marked grief at the time of the murder” over the death of his brother in a car accident which had a “devastating impact” on the applicant’s family.

60    Noting the applicant’s desire to become a leader in the community and his involvement in sport, the Tribunal concluded that his positive conduct was outweighed by his involvement in numerous incidents and the callous circumstances of the murder.

61    In reference to paragraph 8.2(2)(b), the Tribunal noted there was “compelling evidence” of the impact that the Tribunal’s decision would have on immediate family members, particularly the applicant’s nieces and nephews. The Tribunal also stated “there are very clear emotional, practical and financial benefits” for the applicant’s parents (and his entire family unit) if he were to return to his family home and the decision to cancel the visa was revoked. Further, “extensive evidence” was given about the applicant’s social links with relevant people, and the Tribunal noted removal of the applicant may “undermine the work of community organisations that seek to build social cohesion”.

62    The Tribunal noted that whilst the removal of the applicant may deprive community organisations “of a potential future leader … the converse is also true, if [he] were to reoffend”.

63    Placing weight on the impact of the Tribunal’s decision on the applicant’s parents in particular, the Tribunal concluded that “Primary Consideration 3 weighs heavily in favour of the revocation of cancellation of [his] visa”. See TD at [129]–[130].

Primary consideration 4: Best interests of minor children in Australia affected by the decision

64    The Tribunal referred to the applicant’s “enduring relationship” with his nieces and nephews and was satisfied he played an “active role” in their lives. The physical separation from the minor children was deemed to be “detrimental” to their relationship with the applicant.

65    The Tribunal noted the applicant’s “strong desire to be a positive influence in the lives of his nieces and nephews”, three of whom had absent paternal figures in their lives. Whilst the Tribunal did not doubt his desire to be a positive influence, it was “guarded in accepting its immediate value” because the applicant had no recent practical experience in caring for children. However, it was accepted that there was scope for all nieces and nephews to benefit from the applicant’s physical presence. There was no evidence that the applicant’s prior conduct had any negative impact on any child within his family whatsoever, and no evidence of any child being at risk of family violence.

66    Having considered the totality of the evidence and the best interests of minor children in Australia affected by this decision, the Tribunal concluded that “Primary Consideration 4 weighs heavily in favour of the revocation of cancellation of CGQJ’s visa”. See TD at [141]–[142].

Primary consideration 5: Expectations of the Australian community

67    The Tribunal noted that the direction under paragraph 8.5(2)(c) (regarding the community expectations that the Australian Government should cancel visas if non-citizens raise serious character concerns through the commission of serious crimes against children or other vulnerable members of the community) was not determinative but formed “a meaningful part of the Tribunal’s evaluative process”.

68    In consideration of paragraph 8.5, the Tribunal stated:

149.     Weighty countervailing considerations include the fact that CGQJ was also aged 17 years at the time he committed the crime of murder and was mourning the loss of his brother. He has taken meaningful steps towards rehabilitation in recent times, with some success. CGQJ has resided in Australia since he was aged 11 years, having arrived with his family on a refugee visa. His family remains highly supportive of him. CGQJ is also a long-standing member of the South Sudanese community in Australia.

150.     Notwithstanding all countervailing considerations, the Tribunal is reasonably satisfied that the expectations of the Australian community as a whole weigh very heavily against the revocation of the cancellation of CGQJ’s visa given his very serious offence of murder.

69    The Tribunal concluded that Primary Consideration 5 weighed “very heavily” against the revocation of the cancellation of the applicant’s visa.

Other considerations (a): Legal consequences of the decision

70    The Tribunal noted the “significant body of evidence” before it that it would not be safe for the applicant to return to South Sudan due to his Catholic religion and Dinka ethnicity. The Tribunal placed weight on evidence from the applicant’s family members who feared physical harm and for the applicant’s safety if he were to return to South Sudan. The Tribunal noted that the evidence suggested a prospect of harm which raised non-refoulement obligations.

71    The Tribunal noted the applicant’s submission that he may be stateless and that South Sudan may not recognise him as a citizen, although there was varying evidence before the Tribunal regarding the applicant’s state of birth and his citizenship status.

72    The Tribunal noted that the applicant had not made an application for a protection visa, (although it was open for him to do so) and the Tribunal could not pre-empt the outcome of an application, reasoning as follows:

159.     Having considered CGQJ’s representations and Plaintiff M1/2021 v Minister for Home Affairs [[2022] HCA 17], the Tribunal chooses to proceed on the basis that if and when CGQJ applies for a protection visa, any protection claims he has will be assessed before consideration is given to any character concerns associated with him. This includes non-refoulement considerations. In proceeding in this way, the Tribunal acknowledges that CGQJ may remain an unlawful non-citizen and that steps may be taken to remove him from Australia if he does not apply for a protection visa. The Tribunal is also mindful of the uncertainty that an application for a protection visa may cause on CGQJ and his family and community.

73    The Tribunal was not reasonably satisfied that the applicant had suffered any form of unlawful punishment, and his imprisonment was proportionate to his crime and conduct in prison.

74    The Tribunal was not satisfied that the applicant would be indefinitely detained or refouled because of this detention. The Tribunal stated that:

162.     The Tribunal is not reasonably satisfied on the evidence before it that any decision to affirm the decision under review would be inconsistent with the laws, policies and principles to which Australia ascribes. The uncertainty of detention is difficult for CGQJ and his family and community, but CGQJ has also achieved a level of rehabilitation whilst in detention.

75    In light of the above, the Tribunal concluded that the legal consequences of a decision not to revoke the cancellation of the applicant’s visa “weigh[ed] neutrally”. See TD at [163].

Other consideration (b): Extent of impediments if removed

76    Regarding paragraph 9(1)(b), the Tribunal noted that the applicant was overall in relatively good physical health, although it had concerns about the applicant’s mental health if he was removed in circumstances where he cannot see most members of his family again. The Tribunal was “reasonably satisfied” that the applicant would suffer a mental health crisis if he was removed to South Sudan.

77    The Tribunal was satisfied that the applicant’s religion and ethnicity would pose a cultural barrier to the applicant in some parts of South Sudanese society, compounded by his inability to speak Dinka fluently, which would in turn affect the social, medical and economic support available to the applicant. The Tribunal concluded that there were “significant impediments” that the applicant may face if removed to South Sudan and he would “struggle with basic living standards in the short-term, and possibly longer”.

78    The Tribunal concluded that this consideration weighed “very heavily” in favour of the revocation of the cancellation of CGQJ’s visa”. See TD at [190].

Other consideration (c): Impact on Australian business interests

79    The Tribunal found that this consideration was not relevant.

The Tribunal’s conclusion

80    Consistent with paragraph 7(2) of the Direction, the Tribunal placed greatest weight on primary consideration 1 (namely, the protection of the Australian community) and gave greater weight to the primary considerations than it did to the other considerations.

81    The Tribunal also noted paragraph 5.2(2) of the Direction, which stated that “[t]he safety of the Australian Community is the highest priority of the Australian Government”. The Tribunal then found that “CGQJ may relapse into alcohol, or drug, use despite his admirable efforts towards rehabilitation. The Tribunal finds his risk of his reoffending to be unacceptable”. See TD at [172].

82    Having had regard to the totality of the evidence and the considerations in MD-110, the Tribunal was not satisfied that there was another reason to revoke the cancellation of the applicant’s refugee visa. Accordingly, the Tribunal affirmed the Minister’s decision to cancel the visa.

The applicant’s submissions

Ground one

83    In the applicant’s written submissions (expressed in substantially similar terms in the originating application for review), ground one was expressed as follows:

The Tribunal failed to consider the Applicant’s representations of his risk of harm if returned to South Sudan and the impact of ongoing detention in support of there being another reason to revoke the cancellation of the Applicant’s visa.

84    The applicant stated that “[t]he clearly articulated submission by [him] was that the harm he faced was an impediment to removal (broadly, not within the narrow meaning of paragraph 9.2) or another reason for revocation”. Whilst the Tribunal was within its power to defer consideration of the non-refoulement claims in the “legal consequences” section, the Tribunal fell into jurisdictional error because it did not consider the underlying facts of the claim as part of the “extent of impediments section” or elsewhere in the decision.

85    The impact of ongoing detention was not pressed in counsels’ oral submissions.

Obligation to consider the underlying facts

86    The applicant relied on Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Kiefel CJ, Keane, Gordon and Steward JJ) for the proposition that if the applicant was relying on the underlying facts as another reason, the decision-maker must take into account those facts:

[24]    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations.

…

[39]    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.

(Emphasis added).

87    Ms Tadros submitted that, whilst the majority in Plaintiff M1/2021 use the expression “may be necessary”, the cases cited provide that the decision maker was obligated to take into account the facts underpinning citing, DOB18 v Minister for Home Affairs (2019) 269 FCR 636 at 681 [185] (Robertson J).

88    Ms Tadros submitted that the Tribunal’s decision can be distinguished from Plaintiff M1/2021, because unlike the present case, the delegate in that case considered the plaintiff’s claims of harm extending beyond the concept of non-refoulement. Ms Tadros referred me to what Kiefel CJ, Keane, Gordon and Steward JJ said at [40], as follows:

Here, the reasons record the Delegate’s consideration of the issues of fact presented by the plaintiff’s non-refoulement claims. The Delegate stated that they had considered the plaintiff’s “claims of harm upon return to [South] Sudan outside the concept of non-refoulement and the international obligations framework” and that they accepted that, “regardless of whether [the plaintiff’s] claims [were] such as to engage non-refoulement obligation s, [the plaintiff] would face hardship arising from tribal conflicts were he to return to [South] Sudan”. The harm, which formed the basis of his non-refoulement claims, was that if he was returned to South Sudan he faced persecution, torture and death. In concluding that they were not satisfied that there was another reason to revoke the Cancellation Decision, the Delegate stated that they had “considered all relevant matters including … an assessment of the representations received in relation to the invitation for the purposes of s 501CA(4)(a)”.

89    Ms Tadros submitted that the appeal in DOB18 failed because the Minister’s statement of reasons provided that (at [106]):

I have also considered [the appellant’s] claims of harm upon return to [redacted] outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the appellant’s] claims were such as to engage non-refoulement obligations, he would face hardship arising from his stated homosexuality were he to return to [redacted].

90    She also referred to what Robertson J went on to say in DOB18 as follows:

[185]    In my view there is a relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. That distinction follows the difference between the claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations (which are concerned with a State party returning a person to another state), on the other hand.

…

[188]    Although the facts and statutory context in Ezegbe were different to the present case, the dispositive reasoning, at [28], is not dissimilar to the reasoning which I consider to be applicable. The conclusion in that case was that 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. This was because part of the case Mr Ezegbe had been putting to the Minister in his representations under s 501CA(4) for why his visa should not be cancelled was the fact that he would be harmed if returned to Nigeria.

91    Ms Tadros also sought to distinguish BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2025) 307 FCR 150 because in that case, the applicant did not make representations that the risk of harm would be “another reason” and framed the risk solely within the context of paragraph 9.2 of the Direction (extent of impediments). Unlike in BNY23, the applicant’s claims went beyond claims that would necessarily be considered in a protection visa application.

92    In substance, the applicant’s submissions were that if a decision maker defers consideration of non-refoulement claims, the Tribunal may fall into jurisdictional error if it fails to consider the underlying facts of such a claim as another reason to revoke the cancellation of the applicant’s visa.

Representations of the underlying facts

93    The applicant relied on the following matters said to underlie the claim that he faced harm, as another reason to revoke the cancellation and independent to the non-refoulement considerations under paragraph 9.2 of the Direction (i.e. extent of impediments if removed):

(a)    “he feared for his safety in South Sudan due to the violence and conflict”;

(b)    “[h]e expressed concern that he would end up homeless, without money and lack any support”;

(c)    “[h]e worried about the impact of being returned on his and his family’s physical and mental health. He believed a Dinka man returning from Australia would not survive long there;”

(d)    “there was a real risk that South Sudan would not recognise him as a citizen and confer him with the necessary documentation to be deported to South Sudan, leaving him effectively stateless”; and

(e)    “[t]he Applicant faced a risk of harm in South Sudan – including death, torture, violence and kidnapping – for reason of his imputed political opinion, being a returnee from the west, his ethnicity and his mental health”.

The alleged error by the Tribunal

94    Ms Tadros submitted that nowhere in the reasons did the applicant deal with the underlying claims as “another reason”. She submitted that at [157] of the Tribunal’s reasons, the Tribunal deferred consideration of the applicant’s non-refoulement obligations because it stated that the applicant “has not made an application for a protection visa. It is open for him to do so and to have any such application comprehensively assessed… This is a separate, and quite different, administrative process”.

95    Ms Tadros’s primary submission was that there was no mention at all of the physical harm as a result of the generalised violence, crime or conflict in relation to the country information, and that therefore, the Tribunal did not consider the risk of harm if the applicant was returned to South Sudan on the basis of conflict, violence or crime.

96    The applicant stated in written submissions:

The Tribunal thus denied the Applicant procedural fairness by either failing to consider his claims of harm beyond the non-refoulement context, or by misunderstanding them as being solely relevant to an assessment of non-refoulement. Alternatively, the error could be construed as the Tribunal misapplying Direction 110 to confine the matters it can take into account, by assuming that paragraph 9.2 of Direction 110 only allowed consideration of the factors listed, such as cultural barriers, and that harm could only be addressed as part of non-refoulement considerations in paragraph 9.1.

Ground two

97    The applicant further submitted that the Tribunal’s decision to give no weight to the evidence that the applicant faced serious and immediate human consequences (i.e., prolonged detention, mental health deterioration and a real prospect of harm if removed) was legally unreasonable, citing Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 (Singh) where Rangiah J stated at [28]:

By the expression “neutral weight”, the Tribunal meant that the adverse legal consequences for the applicant had no influence on its decision one way or the other. The Tribunal accordingly considered that such circumstances provided no support for a decision that the cancellation decision be revoked.

98    Mr Kenneally, who made oral submissions in respect of ground two, referred to various instances where his Honour used the term “no weight” as a synonym for “neutral weight”. For example, at [34], Rangiah J said that the “Tribunal identified the consequences of a decision not to revoke the cancellation decision … and decided to give those consequences neutral (no) weight”. His Honour repeated the phrase “neutral (no) weight” elsewhere (at [35] and [36]).

The respondent’s submissions

Ground one

Alleged obligation to consider representations of risk of harm

99    The Minister submitted that there was no obligation to consider the underlying facts of a non-refoulement claim unless the non-citizen made an express or implied claim with the following two characteristics:

(1)    it is made independently of a claim to the effect that Australia’s non-refoulement obligations are engaged; and

(2)    expressly or impliedly, it is directed at some level of harm that falls short or outside the kind of harm that will qualify them for a protection finding.

100    Mr Solomon-Bridge referred to what Kiefel CJ, Keane, Gordon and Steward JJ said in Plaintiff M1/2021 at [39]:

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.

(Emphasis added.)

101    As the Minister put it in his written submissions, Plaintiff M1/2021 “does not stand for the proposition that all alleged facts underpinning an applicant’s representation concerning non-refoulement obligations are to be taken into account” citing [30] where Kiefel CJ, Keane, Gordon and Steward JJ said:

Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.

(Emphasis in original.)

102    Mr Solomon-Bridge submitted “[t]hat’s, of course, what happened here, where the tribunal put to one side the applicant’s so-called non-refoulement claims as something that could and would be more appropriately dealt with in a protection visa application, which it was and remains open to the applicant to make”.

103    He submitted that the deferral of factual allegations meant that there was no obligation to conduct a factual interrogation into the lower levels of harm. That was particularly so in circumstances where the Tribunal “felt disabled vis-à-vis the department in doing a proper assessment … and so it would be a bridge too far to insist that, simply because the protection visa matter is to be deferred, including because of those relative efficiencies, nevertheless, the tribunal must perform the factual interrogation, which [sic] itself – felt disabled from doing”.

104    As Mr Solomon-Bridge further submitted:

… it would be an odd result if the High Court, in the one breath, says to a decision-maker, “You may permissibly defer non-refoulement claims to a protection visa assessment,” but then there to be some proposition of law which insists on the decision-maker who deferred that assessment having to perform the self-same factual inquiry that would otherwise accompany such an assessment, stopping short only at the point of making findings or characterisation as to whether the findings so made amount to relevant non-refoulement harm or not.

105    He also relied on the Full Court decision in BNY23 for the proposition that if there is no clearly articulated or implicit submission directed to levels of harm falling outside the protection visa framework, the Tribunal is not required to consider such matters. As Rangiah and Rofe JJ stated at [172]:

The submission that paragraph 9.2 was engaged by the harm the appellant would likely suffer due to his Anuak ethnicity was only based upon facts underlying his claim that he was owed non-refoulement obligations. There was no clearly articulated submission that the appellant might face discrimination or persecution at a level lower than would be sufficient to engage protection or complementary obligations which would be an impediment to establishing himself and maintaining basic living standards. Neither did such a proposition clearly arise on the material before the Tribunal. There was no error in the Tribunal’s failure to the appellant’s claims that he was owed non-refoulement obligations, or the facts underpinning that claim, in the context of paragraph 9.2.

Representations before the Tribunal

106    The Minister submitted that the applicant did not identify any specific “claims of harm” which it alleged the Tribunal failed to consider, beyond acknowledging that those claims were framed in terms of Australia’s non‑refoulement obligations or as an impediment to return.

107    At [180] of the SOFIC, under the heading “Another Reason: The Extent of Impediments if Removed”, the applicant submitted that “even if the Tribunal refuses to consider Australia’s non-refoulement obligations, it must nevertheless consider the underlying facts in support of there being ‘another reason’”. At [181], the applicant stated that “[w]e therefore refer to and repeat those submissions as part of this consideration” insofar as it related to the underlying facts said to support the existence of “another reason”. Mr Solomon-Bridge stated that in accordance with the “true principle”, the Tribunal was not required to conduct that factual interrogation merely because the applicant requested it, particularly where the matters relied upon were “coterminous with the very matters which are said to entitle them to protection in that later process”.

108    Further, in relation to the “country information” referred to at [183] of the SOFIC, Mr Solomon-Bridge submitted there was nothing to suggest the existence of some “lower level” falling outside the protection framework that would nevertheless require consideration.

109    The Minister also provided in his written submissions that if the applicant contended that the Tribunal ought to have addressed claims that he would be at risk of being “conscripted, killed, kidnapped or held for ransom if returned to South Sudan”, then by reference to what Rangiah and Rofe JJ said in BNY23 at [172], these were not claims made “at a level lower than would be sufficient to engage protection or complementary obligations”. Accordingly, these claims were such that they could permissibly be put to one side and did not require actual findings of fact as an adjudication of those claims.

110    These purported “lower levels” of harm were that the applicant had not been in South Sudan since he was very young, he has no family or friends there, he does not speak the language and has no practical knowledge of how to live or work in that country. The Minister submitted that these were matters that the Tribunal was well aware of, and they “did not need to recite each and every item of evidence in any particular section of its reason for the Court to accept that it properly had regard to them”.

Ground two

Neutral weight

111    There was no dispute between the parties on the meaning of “neutral weight”. However, the Minister submitted that neutral weight was assigned to the legal consequences overall of its non-revocation decision, and not to any one consequence. As the Minister put it in his written submissions at [32];

… it is wrong to suggest that each identified legal consequence is a matter that must separately be weighed in making the final decision as to whether there is another reason to revoke the cancellation. Rather, it is the Tribunal’s overall view of what the legal consequences of the decision are that is to be considered under cl 9(1)(a) of Direction 110.

112    Ms Chan, who made oral submissions in respect of ground two, referred me to Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870 which warns against adopting a mathematical approach to weighing relevant considerations and rather, Kennett J said at [22]:

In the “real world” ... the ultimate decision as to which relevant factors are more important (and ... which side of the line a case falls) is likely to be instinctive, and correspondingly unlikely to be explained in granular detail.

113    It was submitted that the Tribunal did not give weight to any findings related to the legal consequences of its decision, because it did not make any such findings. Rather, the Tribunal chose permissibly to defer consideration of those concerns to the protection visa process.

114    For example, at [154] of the Tribunal’s decision, it noted that there was a significant body of evidence before it that it would not be safe for the applicant to return to South Sudan. However, as was submitted, at no point did the Tribunal make any finding as to the likelihood or probability of whether the applicant would face the claimed harms.

115    Further, at [155], the Tribunal stated that:

Mr Zakaria raised concerns that his younger brother may be kidnapped or held for ransom if he were returned to South Sudan, which the tribunal places weight upon.

116    Ms Chan submitted that the Tribunal was merely placing weight on the applicant’s brothers concern and “[i]t wasn’t making a finding as to the likelihood or probability of the risk of the applicant being kidnapped or held for ransom actually eventuating on return”.

117    As to the applicant’s ongoing detention, the Minister submitted that the Tribunal’s reasons demonstrate that the Tribunal accepted that detention would be difficult for the applicant. At [162] of the Tribunal’s reasons, the Tribunal specifically noted that:

The Tribunal is not reasonably satisfied on the evidence before it that any decision to affirm the decision under review would be inconsistent with the laws, policies and principles to which Australia ascribes. The uncertainty of detention is difficult for CGQJ and his family and community, but CGQJ has also achieved a level of rehabilitation whilst in detention.

118    As Ms Chan submitted:

What is shown in the reasons is that the tribunal did, in fact, accept that detention would be difficult for the applicant – and it may be implied – gave weight to these matters. It simply did not find this to be determinative of whether the legal consequences over overall weighed for or against revocation.

..

In dealing with this topic, the tribunal correctly noted that the hypothetical nature of the scenario meant it couldn’t make any conclusive findings either way about this matter.

And it didn’t have to make a finding. Its task was to reach a state of satisfaction. Findings of fact are not necessarily required to support a state of non-satisfaction, and it simply correctly noted the speculative nature of the scenario was not something that it could meaningfully make findings about or attribute weight to.

Consideration

119    The ultimate question before the Tribunal was whether there was “another reason” for revocation of the visa cancellation decision.

120    In considering that question, the Tribunal was to be guided by the Direction. Paragraph 5.1(4) of MD-110 states:

The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

121    As I have endeavoured to demonstrate, the dispute between the parties before me related primarily to paragraphs [153]–[167] of the Tribunal’s decision, being the paragraphs pertaining to the “legal consequences” of the decision and the “impediments” that the applicant would face if he were removed from Australia.

Ground one

Alleged failure to consider representations of risk of harm

Neutral weight of legal consequences

122    I agree with the Minister’s submission that the Tribunal did not make any findings in respect of the legal consequences of its decision, but it did explicitly consider the following facts, both as independent factual matters and as factual matters underlying the non-refoulement claim:

38.     CGQJ gave evidence that he fears that he will be harmed if he is removed to South Sudan because of his Dinka ethnicity. He does not fluently speak Dinka or Arabic and he believes that he will be regarded as a foreigner. He would be homeless.

…

49.     Mr Angelo’s [CGQJ’s father’s] three brothers and sister were all killed in Sudan. He fears that CGQJ would be harmed or hurt in South Sudan. Mr Angelo would not be able to visit, nor could he afford to support CGQJ.

…

56.     Mr Zakaria [CGQJ’s brother] returned to Sudan in 2011 for two weeks. It was expensive and there was a lot of tribal conflict and was not safe. He has deep concerns as to how CGQJ would practically survive in South Sudan on a day-to-day basis, in addition to it effecting his mental health. …

…

68.     Mr Albert gave evidence about his knowledge of the current situation in South Sudan. Mr Albert is of the view that the next few years in South Sudan will be difficult due to a developing power vacuum that will lead to major conflict. In the event of such conflict, CGQJ is of fighting age and may be forcibly recruited or at least otherwise caught up in events. Mr Albert expressed his concern about CGQJ’s survival if he is removed to South Sudan.

…

74.     Mr Ambrose Mareng is the General Manager of the Sudd Foundation. … Mr Mareng gave evidence that CGQJ would be subject to extreme physical risk and social harm if he were removed to South Sudan. …

…

77.     [CGQJ] is the President for the Dinka Community Union of Victoria and Chair of the Board of Directors of the Sudd Foundation. … Mr Machar believes that CGQJ will be placed at high risk if removed to South Sudan due to the serious and deadly conflict there. …

…

(a)     Legal consequences of this decision

153.     It has been submitted that there are dire legal and human consequences for GQJ if the Tribunal does not revoke the cancellation of his Class BA Subclass 200 (Refugee) visa.

154.     The Tribunal has a significant body of evidence before it that it would not be safe for CGQJ to return to South Sudan due to his Catholic religion and Dinka ethnicity. Concerns have been raised that CGQJ may be conscripted or killed were he returned to South Sudan. The evidence of Mr Mathew Albert put these concerns in a thoughtful and considered manner and linked them to ongoing instability in South Sudan due to the frailty of its political leadership.

155.     Mr Zakaria raised concerns that his younger brother may be kidnapped or held for ransom if he were returned to South Sudan, which the Tribunal places weight upon. CGQJ’s parents also understandably expressed deep worry for their son’s safety if he were returned to South Sudan. The evidence suggests that CGQJ may suffer in South Sudan for his Australian experience. The evidence before the Tribunal also suggests a prospect of harm if CGQJ were returned to South Sudan, which in turn raises non-refoulement considerations.

156.     The Tribunal notes CGQJ’s submission that he may be stateless, and that South Sudan may not recognise him as a citizen. This is despite CGQJ being of Dinka extraction. There is varying evidence before the Tribunal as to CGQJ’s place of birth, which he had thought to be Khartoum in Sudan but now he understands it to be Wau in South Sudan. There is a lack of supporting documentation to assist the Tribunal to ascertain CGQJ’s citizenship status, although CGQJ seems to be a de jure citizen of South Sudan with a right of return. From the submissions, it seems unlikely that CGQJ is entitled to Sudanese citizenship, but the Tribunal is not able to be reasonably satisfied on that issue.

123    As the Minister submitted, the Tribunal therefore specifically considered the facts underlying the non-refoulement claim without making findings about them.

124    I am satisfied that the Tribunal’s consideration of the claims of harm in paragraphs [153] and [154] were not directed exclusively to its consideration of the non-refoulement claims. That is clear enough from the fact that those harms were raised independently in those paragraphs, and then referenced again in [155] as raising “non-refoulement considerations”. And contrary to the applicant’s submission, it is not necessary for the Tribunal to make an explicit statement to that effect.

125    In this regard, it is appropriate to keep in mind the observations of the unanimous High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 280 CLR 265 at 286 [50] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ):

The sequential structure of reasons, so that each topic is dealt with under a separate heading, is not generally a sufficient reason to infer that in dealing with one matter the decision-maker has forgotten the substance of the preceding parts of the reasons or is unaware of the substance of the subsequent parts of the reasons. Nor would it be readily inferred from mere sequential structuring and dealing with each topic under its own heading that a decision-maker had quarantined the assessment of each topic from every other topic.

126    The Tribunal was also justified in deferring the detailed assessment of the non-refoulement claims to a protection visa application (if one is made) without speculating on the outcome in accordance with the Direction at [157] and [159] of the Tribunal’s reasons.

127    As submitted by the Minister, the Tribunal “chose to proceed on the basis any protection claims the applicant has, including any non-refoulement claims, would be assessed as part of any application for a protection visa if and when that was made”.

128    As Robertson J said in DOB18 at 682–683 [193]:

… I do not accept the premise that it is a jurisdictional error in all circumstances for the Minister to reason that whether non-refoulement obligations are owed will be fully considered in the course of processing an application for a valid protection visa which the applicant is able to make. In particular, it does not disclose jurisdictional error in the present case, in circumstances where the Minister accepted that the appellant would face hardship if returned to Bangladesh — the factual basis said to engage non-refoulement obligations — and took that hardship into account.

129    In the circumstances, the Tribunal cannot be criticised for considering non-refoulement issues and the facts underlying them at an appropriate level of detail before proceeding on the basis that such matters would be more fully considered if and when the applicant applies for a protection visa. Such an approach is consistent with the guidance provided in the Direction and the requirements under the Act.

130    The ultimate question is whether the Tribunal considered the relevant factual matters for the purpose of determining whether there was “another reason” to revoke the visa cancellation. The applicant’s submission fails to recognise that the Tribunal did consider those matters — both within the rubric of the Direction and outside of it — and that its consideration informed its answer to the ultimate statutory question in s 501CA(4)(b)(ii) of the Act.

131    In my opinion, the Tribunal’s consideration of the facts underlying the non-refoulement claims without making findings about them, and its decision to defer the detailed assessment of such claims to the protection visa application stage, is sufficient to demonstrate that those facts were properly considered for the purposes of determining whether there was “another reason” to revoke the visa cancellation decision.

132    I also note that the applicant’s submissions presuppose that an inevitable legal consequence of the Tribunal’s decision is that he would eventually be repatriated to South Sudan. But that outcome is far from inevitable. Repatriation could only occur if the applicant: (i) chooses not to exercise his entitlement to apply for a protection visa; or (ii) does apply for a protection visa but does not obtain a protection finding in his favour (such that Australia is found not to owe him non-refoulement obligations). Even in those circumstances, the evidence does not establish that the applicant would be sent to South Sudan rather than a third country.

133    In this regard, the applicant also fails to recognise the uncertainty that inevitably arises from the fact that whether Australia’s non-refoulement obligations are triggered turns on whether the applicant becomes subject to a protection finding, which in turn depends on whether the applicant chooses to lodge an application for a protection visa. The Tribunal explicitly recognised that it is within the applicant’s power to lodge such an application. See TD at [157]. Further, in the event that such an application was unsuccessful, the evidence does not establish that the applicant would be removed to South Sudan or to a third country.

134    At the time of the Tribunal’s decision, there was therefore uncertainty of outcome with respect to: (i) the applicant’s decision to lodge a protection visa application; (ii) the success of that application (and any protection finding or non-refoulement obligations that would follow from the success of such an application); and (iii) whether the applicant would be sent to a third country instead of South Sudan. In light of that substantial uncertainty, the Tribunal was entitled to attribute neutral weight to the legal consequences of its decision.

135    As the Minister submitted, in dealing with the legal consequences of its decision, “the tribunal correctly noted that the hypothetical nature of the scenario meant it couldn’t make any conclusive findings either way about this matter”.

Assessment of impediments

136    In Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 , Bromwich, Thomas and Raper JJ said the following about Direction 79 (which is not relevantly different to Direction 110) at [45]:

The disposition of both appeal grounds involves consideration being given to what Directions made under s 499 require of decision-makers. First, Direction 79 is not an exhaustive universe; it refers to matters that a decision-maker must consider but does not confine what may be taken into account … Secondly, there will necessarily be overlap in the evidence, submissions and weight given to the consideration of each of the factors identified … such that a reviewing court must exercise caution when considering the Tribunal’s consideration of each of the factors. A substantive rather than form-driven review must be undertaken. Thirdly, and related to this second point, the decision-maker is not necessarily required to address every consideration explicitly in their reasons.

(Emphasis added.)

137    In that regard, I agree with the Minister’s written submission at [12] that the Tribunal does not need to explicitly refer to all alleged facts underpinning an applicant’s representations concerning non-refoulement obligations for the purposes of the impediments analysis in paragraph 9.2 of the Direction. I also agree with the Minister’s contention at [13] that:

… where the Tribunal permissibly defers the question of whether Australia owes non-refoulement obligations, there is no free-standing obligation to consider the harm which is said to be feared by the non-citizen, where that is not the subject of a clearly articulated claim said to be relevant for another reason, or which otherwise clearly arises. And even if the facts comprising a non-refoulement claim are expressly said to be relevant also to the non-citizen’s impediments to return, a decision-maker may consider that the upholding of the non-refoulement claim as part of a later envisaged protection visa process would mean that the non-citizen is not exposed to that very harm (e.g. because it would lead to a protection finding that would prevent the non-citizen’s removal under s 197C(3)(b) of the Act).

138    In any event, the Tribunal did consider the relevant impediments that the applicant would face if returned to South Sudan, as outlined at [122] above and as follows.

(b)     Extent of impediments if removed

164.     CGQJ is aged 38 years and is in relatively good physical health. He has suffered some minor sporting injuries, but the evidence is clear that CGQJ can work in physical industries such as construction and warehousing.

165.     The Tribunal has concerns regarding CGQJ’s mental health if he is removed, particularly in circumstances where he may not physically see most members of his family again. CGQJ has unresolved issues with drug and alcohol abuse, and these may compound any mental health issues. Noting Mr Newton’s evidence, the Tribunal is reasonably satisfied that CGQJ would suffer a mental health crisis if he were removed to South Sudan.

166.     CGQJ’s Catholic religion and Dinka ethnicity have already been considered in the context of the legal consequences of this decision, but they are relevant here. On the evidence before it, the Tribunal is satisfied that CGQJ’s religion and ethnicity would pose a cultural barrier to CGQJ in some parts of South Sudanese society. This would be compounded by CGQJ’s inability to speak Dinka fluently, at least in the short-term. This in turn would affect the social, medical and economic support available to CGQJ in the context of what is generally available to other citizens of South Sudan.

167.     It is clear in this matter that there are significant impediments that CGQJ may face if he were removed to South Sudan. He would struggle with basic living standards in the short-term, and possibly longer. On balance, therefore, this consideration weighs very heavily in favour of the revocation of the cancellation of CGQJ’s visa.

139    The reference in [166] to CGQJ’s “Catholic religion and Dinka ethnicity” relates to the discussion in [154] as to the legal consequences of the Tribunal’s decision, which I referred to above.

140    It can be seen from the above paragraphs that the Tribunal’s consideration of impediments incorporated both the potential harms of refoulement discussed in the legal consequences section (the detailed consideration of which was permissibly deferred to the protection visa application stage) and other forms of harm that may fall short of the more significant harms considered in the legal consequences section.

141    I also agree with the Minister’s submission (at [25(d)]) that:

… the Tribunal considered the applicant’s claims to be owed non-refoulement obligations by (permissibly) deferring that assessment to the protection visa process, and otherwise considered lower levels of harm arising from the facts as impediments on return. The applicant has not identified any different “levels and types of harm” that were not caught by the Tribunal’s consideration of these two “levels” of harm.

(Emphasis added.)

142    It also seems to me that the Tribunal was careful to mention, by reference to the “thoughtful and considered” evidence of Mr Albert (which the Tribunal obviously accepted), that the peculiar harms that could be faced by the applicant if returned to South Sudan were “linked” to the generalised harms that would affect everybody in the region.

143    As the assessment of impediments is one component of the ultimate statutory question (namely, whether there is “another reason” to revoke the cancellation of the applicant’s refugee visa), any suggestion by the applicant that the Tribunal was required to repeat its consideration of the same factual matters as an independent component of the statutory question is misconceived.

144    It follows from the above that I reject the applicant’s submission that the Tribunal committed an error by assuming that: (i) paragraph 9.2 of MD-110 was restricted to a consideration of the impediments specifically listed in the Direction (such as cultural barriers); and (ii) harm could only be addressed as part of the non-refoulement considerations in paragraph 9.1.

145    On the issue of materiality, I refer to the following exchange between me and Ms Tadros during the hearing (see transcript at p 32):

HIS HONOUR: Isn’t it important in 167 that the tribunal says:

This consideration weighs very heavily in favour of revocation of the cancel[l]ation?

MS TADROS: Yes. But that finding has to be read in the context of what he actually discusses in those sections relating to extent of impediments. And they are confined to age, health and support. They don’t go beyond that to claims of harm.

HIS HONOUR: How much better do you want it than, “The consideration weighs [very] heavily in favour of revocation?”

MS TADROS: Well, because – I mean, that’s a materiality question. But we say that if the tribunal had considered claims of harm, that the weight that would have been put on that would have been more. And that could have ultimately changed the evaluation of the statutory task under section 501CA(4). …

(Emphasis added.)

146    Even if it were the case that the Tribunal failed to consider the facts underlying the non-refoulement claim as parts of its evaluation of the impediments (which in my view it did not), I am not persuaded that any additional consideration of such matters would have led the Tribunal to find that the impediments weighed more than “very heavily” in favour of revocation. It follows that I disagree with Ms Tadros’ submission that the claimed error was material.

Conclusion as to risk of harm

147    In my view, the Tribunal gave sufficient consideration to the applicant’s representations of his risk of harm if returned to South Sudan.

Alleged failure to consider the impact of ongoing detention or the consequences of the decision

148    The Tribunal correctly recognised that indefinite detention was not, in fact, a legal consequence of its decision. As the Tribunal put it at [161]:

An effect of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs is that CGQJ cannot be indefinitely detained. The Tribunal is not reasonably satisfied that CGQJ will be indefinitely detained (or refouled) because of this decision. Were CGQJ issued a bridging visa with conditions and released into the Australian community in a strictly controlled manner pending the outcome of any protection visa application, this may indeed be objectively reasonable given his risk of reoffending. However, the prospect of this is currently hypothetical and the Tribunal cannot apportion it weight in any meaningful way.

149    The Tribunal also gave explicit consideration to the impact of the applicant’s previous and ongoing detention, as follows:

26.     CGQJ’s detention has been challenging for him. His evidence is that detention is safer than prison and CCGJ has not been racially abused there, however drugs are still available. CGQJ is far from his family, and he feels that his mental health has deteriorated. CGQJ has not been involved in any violent incidents whilst in immigration detention. In December 2021, CGQJ was found with an unprescribed sleeping tablet in detention.

…

44.     Ms Nyandoup’s evidence is that the impact of CGQJ remaining in detention would be hard and feel like punishment to her. …

…

51.     Miss Lavera [CGQJ’s niece] wants CGQJ to play an important part in her life and to be present at significant events, such as at Christmas. She aspires to be a nurse. Miss Lavera’s contact with CGQJ is more difficult since he has been transferred into immigration detention, having to rely on electronic means of communication rather than in-person visits. She last saw her uncle in person a couple of years ago.

…

55.     … CGQJ’s ongoing detention has been hard on Mr Zakaria and the entire family. Mr Zakaria is concerned for CGQJ’s health if he remains detained.

…

57.     Mr Zakaria’s daughter, Ms Abok, gave evidence. … Ms Abok is concerned for CGQJ’s welfare in immigration detention …

…

112.     In relatively recent times, CGQJ has displayed an admirable trajectory in his course of rehabilitation. CGQJ’s moral character seems to have improved with his self-awareness, despite the hardships of immigration detention. The Tribunal does not doubt CGQJ’s sincerity to do good and help others.

…

124.     … It is unnecessary to labour the evidence that both CGQJ’s parents gave of the positive aspects for them if CGQJ’s visa cancellation is revoked, compared with further uncertainty of possibly remaining in immigration detention or potential removal to South Sudan.

…

132.     CGQJ’s relationships with his nieces and nephews have been encouraged by his family over many years. At times, various nieces and nephews have visited CGQJ in prison. Visitations have been more difficult since CGQJ has been interstate in detention.

…

160.     The evidence before the Tribunal does not reasonably satisfy it that CGQJ has already suffered any form of unlawful punishment. The severity of his imprisonment was proportionate to his crime of murder and conduct whilst imprisoned. Immigration detention is not punishment, despite misgivings from witnesses to the contrary.

…

162.     The Tribunal is not reasonably satisfied on the evidence before it that any decision to affirm the decision under review would be inconsistent with the laws, policies and principles to which Australia ascribes. The uncertainty of detention is difficult for CGQJ and his family and community, but CGQJ has also achieved a level of rehabilitation whilst in detention.

150    It is clear from the above that the Tribunal understood and evaluated the impact of the applicant’s ongoing detention while correctly recognising that indefinite detention was not a possible outcome of its decision.

151    In my view, the Tribunal gave sufficient consideration to the impact of the applicant’s ongoing detention and to the consequences of its decision.

Ground two

152    As the applicant submitted, the Tribunal was bound to proceed on a correct understanding of the law and to exercise its powers reasonably, including basing its decision on rational and probative grounds. Irrationality may be found in a conclusion, or interim findings of facts or reasoning and may give rise to jurisdictional error if it relates to a critical step in the decision. While the weight given to matters under Direction 110 and s 501CA(4) is a matter for the decision-maker, a decision may be unreasonable where a decision-maker’s reasons do not provide an intelligible justification for a conclusion as to weight.

153    To the extent that the applicant submitted that the Tribunal gave each of the factors in the legal consequences analysis “no weight”, that submission is misconceived. As the Minister submitted at [33], after considering each of the possible legal consequences, “[t]he Tribunal’s overall view of this consideration was not that it had ‘no weight’, but that, in its assessment, it weighed neither for nor against revocation”.

154    And counsel for the Minister submitted:

[T]he Tribunal’s overall view of the consideration in clause 9.1 of the direction about the legal consequences of the decision was to give it neutral weight, meaning that, in its assessment, it weighed neither for nor against the revocation.

…

… [I]t’s clear that this neutral weighting was assigned by the Tribunal to the legal consequences overall of its non-revocation decision, and not to any one particular consequence among the many different potential consequences identified and considered by the Tribunal. …

155    In my view, the Tribunal was entitled to find that the legal consequences, considered as a whole, weighed neutrally in circumstances where, for reasons already explained above at [122] and following, it did not make findings as to the legal consequences of its decision.

156    Alternatively, even if it did make such findings, the Tribunal expressly stated that it was “not reasonably satisfied that CGQJ will be indefinitely detained (or refouled) because of this decision” (at [161]). The Tribunal was not satisfied that those claimed harms would invariably result because: (i) following NZYQ, the applicant could be released in Australia on a bridging visa with conditions (which would allow him to avoid prolonged detention); and (ii) it was open to the applicant to apply for a protection visa (which, if successful, would prevent his repatriation to South Sudan). See TD at [157] and [161]. The uncertainty of the outcome for the applicant was therefore an important consideration in the Tribunal’s weighing of the legal consequences of its decision.

157    That uncertainty marks this case out from Singh, where Rangiah J found at [42] that the Tribunal had identified immigration detention as an “inevitable legal consequence” of a non-cancellation decision. In those circumstances, the applicant’s reliance on Singh is inapposite.

158    In circumstances where the Tribunal had taken into account the relevant considerations (a matter which the court should not evaluate too pedantically for the reasons I have mentioned above) the weight that the Tribunal chose to give to the considerations in the Direction was a matter for it. (See Demir at [21]–[22] (Kennett J)):

159    Further, as Crennan and Bell JJ said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:

If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

160    In my view, the Tribunal’s decision to give the legal consequences of its decision neutral weight was not legally unreasonable, irrational, illogical or based on irrelevant considerations.

Disposition

161    For the above reasons, the applicant’s application should be dismissed, with costs.

162    I will make orders accordingly.

Associate:

Dated:    22 May 2026