Federal Court of Australia

HYRS v Minister for Immigration and Citizenship [2026] FCA 661

ORDERS

THE COURT ORDERS THAT:

1.    The amended application be dismissed.

2.    The applicant pay the Minister’s costs of the proceedings.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

JACKMAN J:

1    By an amended originating application filed on 8 May 2026, the applicant seeks judicial review of a decision made by the Administrative Review Tribunal (the Tribunal) on 9 January 2026 (Amended Application). The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) not to revoke the cancellation of the applicant’s Resident Return class BB subclass 155 visa (the Visa) pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (the Act). The Amended Application relies on the ground that the Tribunal failed to afford procedural fairness to the applicant. References to paragraph numbers in these reasons are references to those paragraphs in the Tribunal’s reasons.

2    At the outset of today’s hearing, the applicant sought leave to file written submissions after the hearing in relation to the transcript of the Tribunal hearing, if and when that transcript is obtained, and, in the alternative, an adjournment of today’s hearing in order to have more time to seek to obtain the audio recording and transcript of the hearing before the Tribunal. Counsel for the applicant submitted that the proposition which would ultimately be sought to be advanced in reliance on the audio recording and the transcript is that the transcript and audio recording will contain no relevant material on the procedural fairness ground. The applicant does not rely on any specific statement which was made at the hearing before the Tribunal.

3    The proposition for which the applicant seeks to contend is in fact established, in substance, by the affidavit of Ms Wendy Milojkovic, the solicitor who represented the applicant at the Tribunal hearing and who represents the applicant in the present application, as to what was said or not said at the Tribunal hearing. In that affidavit, Ms Milojkovic says the following:

I took copious notes during the hearing. By reference to my notes and my own recollection, the Tribunal did not ask the applicant any questions regarding his use of ICE/methamphetamine.

In particular, the effect of ICE/methamphetamine on the applicant was not the subject of any questioning by the Tribunal, and the notion of a propensity to use illicit substances raised by the Tribunal [sic].

4    In light of that evidence, I do not see that there is any practical point in either granting leave to file written submissions at a later time or granting an adjournment. The evidence itself appears to establish the substance of the proposition sought to be advanced, as a matter of fact, by the applicant.

5    In addition, there has been very considerable delay in relation to this matter. As I have indicated, the decision of the Tribunal was made on 9 January 2026. No request for the transcript and audio recording of that hearing was made until last week, on 19 May 2026. In the meantime, the matter has been fixed for hearing today, and pre-trial directions have been made for that hearing without any reference by the applicant or his legal representatives to any intention to seek the transcript and audio recording or any difficulty in having the hearing conducted today if that material had not been provided. Accordingly, I reject the application by the applicant for leave to file further written submissions or an adjournment.

6    The applicant was born in England and is a United Kingdom citizen. He emigrated to Australia in 1986 when he was two years old and has remained living in Australia ever since. He has never applied for or been granted Australian citizenship.

7    The Tribunal found that as a teenager, the applicant experimented with numerous illicit drugs, including cannabis, amphetamines, cocaine, LSD, ecstasy, inhalants, dexamphetamines, Ritalin and heroin; he developed a longstanding drug dependency; and as an adult, he used mostly cannabis, heroin and amphetamines: [10]. On 7 July 2021, the applicant took heroin and cannabis and drove his car, during which he fell asleep at the wheel, veering off the road onto the footpath and striking a 17 year old pedestrian, who died two days later from his injuries: [11].

8    On 22 November 2022, the applicant was convicted of the criminal offence of “Aggravated dangerous driving occ death-infl drug or drugs-SI” (the 2021 Offence): [13]. He was sentenced to seven years imprisonment commencing on 22 April 2021 with a non-parole period of 4 years: [13]. On 21 April 2025, the applicant was released on parole having served a term of 4 years imprisonment, before being transferred to Villawood Immigration Detention Centre, where he remains in immigration detention: [14].

9    On 5 July 2021, the applicant had been convicted of the offence “Drive vehicle under influence of drugs - 2nd+off” and was sentenced to six months imprisonment in respect of a collision which took place on 24 September 2020 (the 2020 Offence).

10    On 27 June 2023, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act, because he had been sentenced to a term of imprisonment of more than 12 months (the Cancellation Decision): [15].

11    On 15 October 2025, a delegate decided that they were not satisfied that the applicant passed the character test as defined by s 501 of the Act, nor were they satisfied that there was another reason why the Cancellation Decision should be revoked: [16]. Accordingly, the revocation power in s 501CA(4) of the Act was not enlivened, and the applicant’s visa remained cancelled (the Delegate’s Decision): [16].

12    On 17 October 2025, the applicant lodged an application for merits review of the Delegate’s Decision: [17]. On 9 January 2026, the Tribunal affirmed the Delegate’s Decision. It was not satisfied that the applicant passed the character test as defined by s 501 of the Act, nor was there another reason for revoking the Cancellation Decision pursuant to s 501CA(4)(b)(ii), applying Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110).

13    In dealing with primary consideration (1) under Direction 110, the Tribunal’s reasons included the following as to the nature of the harm and likelihood of engaging in further criminal or other serious conduct.

(a)    The applicant’s actions caused the death of the victim, indicating the severity of the potential harm that the applicant might cause, and the Tribunal regarded even a low risk of reoffending as unacceptable: [71].

(b)    The Tribunal examined the applicant’s long history of substance abuse dating to early adolescence, noting evidence of a psychiatrist, Dr Suzanne Brann, who diagnosed the applicant with moderately severe ADHD, oppositional defiance disorder, chronic PTSD with dissociative symptoms, and a moderately severe substance use disorder across multiple substances, specifically referring to amphetamines among others: [77(c)]. Dr Brann noted a troubling discrepancy between the applicant’s repeated statements over time of wanting to make positive changes and be drug-free, as against actual ongoing use of substances with minimal sustained periods of abstinence: [77(c)].

(c)    Ms Anita Duffy, a psychologist, drew similar conclusions. Notably, she said that the applicant acknowledged that when not using heroin he smoked more cannabis and amphetamine as substitute: [85]. Based on this evidence the Tribunal concluded that the applicant’s mental health issues were deep-seated and pre-dated two sexual assault incidents perpetrated against him in juvenile detention: [97].

(d)    Further, the applicant gave evidence at the hearing that he was not going to let himself relapse and that he would continue to abstain from using heroin or amphetamines: [101]. He accepted that he had relapsed, and had taken drugs (namely amphetamines) five times since the 2021 Offence: [102].

(e)    The Tribunal relevantly concluded that the event of having relapsed on five occasions by having taken illicit substances whilst incarcerated and in detention did not provide confidence to the Tribunal that his memory of the 2021 collision and its consequences had served as lasting deterrent to the applicant against relapsing again at some point in the future: [103].

(f)    While the Tribunal accepted that the applicant had tried to engage positively and constructively in rehabilitation ([123]), it found that the applicant’s rehabilitation was not effective or complete: [182]. Importantly, he had relapsed on five occasions after the 2021 Offence, using amphetamines, most recently in April 2025, upon first arriving in immigration detention: [102], [181]. These relapses did not suggest that the 2021 Offence served as a lasting deterrent and any future relapses could lead to similar re-offending: [185]. Accordingly, there was a real risk that the applicant would relapse into heroin, amphetamine, or cannabis use again during periods of stress or adversity: [186].

(g)    The Tribunal concluded that if the applicant were to relapse and to use illicit substances in future, the 2020 Offence and 2021 Offence were proof enough that the applicant had a propensity to drive his car under the influence (whether conscious or not) and that he would do so when his cognitive functioning, alertness and concentration are significantly or wholly impaired: [187].

14    Thus the Minister submits, and I accept, that the Tribunal was not concerned with whether any one particular drug impaired the applicant’s decision-making. The Tribunal found that all of them did, and the applicant gave evidence that he alternated between them depending on the circumstances.

15    The applicant submits that the Tribunal failed to afford him procedural fairness, specifically failing to give him the opportunity to comment on adverse information. The applicant contends that the specific risk comes from the sequence of events which led to the death of the young man, namely taking cannabis and diamorphine, falling asleep while driving a motor vehicle and consequently losing control of the motor vehicle, thus causing injury. While the Tribunal identified those facts and sequence, it also noted and relied on the applicant more recently taking amphetamine. Although the Tribunal found that the applicant’s rehabilitation was interrupted by his taking amphetamine on five occasions, the applicant’s case is that amphetamine use does not form part of the specific risk of reoffending posed by the applicant, and there is thus a gap in the Tribunal’s reasoning. The applicant submits that there was no evidence or any submission that amphetamine use could cause the specific risk, and that the applicant had no opportunity to comment on that information. The applicant submits that if the applicant had an opportunity to comment on the information, it might have caused the Tribunal to make a different decision, and thus the error is said to be material.

16    I reject those submissions for the following reasons.

17    Both parties correctly focused on the Full Court’s decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 (Northrop, Miles and French JJ), in which the Full Court said that an applicant is entitled to respond to any adverse conclusion drawn by the decision-maker on materials supplied by or known to the subject, which is not an obvious and natural evaluation of that material. That principle was later expressed as follows (at 592):

[Procedural fairness] also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.

18    In that case, the Full Court found that the Commissioner was able to conclude without inviting further submissions that the applicant was not a fit and proper person from submissions made and its own conduct, namely selling X-rated videos without a licence. To this can be added, as the Minister submits, the basal point that procedural fairness requires only that a person be given a reasonable opportunity to present their case before a decision is made that adversely affects their rights and interests: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ). What will constitute a reasonable opportunity depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

19    The difficulty for the applicant is that the concerning nature of his amphetamine and broader drug use was apparent from evidence that he himself had volunteered. Not only was there a long history of illicit drug use, there was evidence (from Ms Duffy based on her interview with the applicant) where he acknowledged that when not using heroin, he smoked more cannabis and amphetamine as a substitute: [85]. The applicant also gave evidence at the hearing that he was not going to let himself relapse and that he would continue to abstain from using heroin or amphetamines ([101]) and accepted that he had relapsed by taking drugs (namely amphetamines) five times since the 2021 Offence: [102].

20    The risks posed by the applicant’s amphetamine use were also obvious from the evidence that was before the Tribunal, including:

(a)    Dr Brann’s report addressed the applicant’s use of multiple substances since he was a teenager, noting that he stated he had first used amphetamines at 14 and escalated to regular use by age 15, using intravenously or nasally and said he liked the feel of it but hated “coming down”: [75]. Dr Brann opined that the applicant had a chronic substance use disorder in relation to multiple substances (namely cannabis, amphetamines, heroin and methamphetamine), which Dr Brann rated as moderately severe: [77(c)].

(b)    other evidence indicating that the applicant had used amphetamines as a substitute drug. In his Personal Circumstances Form (lodged with the Department), the applicant identified “drug addiction/dependency as a coping mechanism for dealing with teenage sexual abuse” as a contributing factor to his offending. Similarly, in a handwritten letter provided to the sentencing judge dated 19 April 2022, the applicant stated that his “addiction has bounced between amphetamines and heroin”. I note that procedural fairness does not require a decision-maker to disclose information the substance of which is already known to the person who may be affected by the decision: Hala v Minister for Justice [2015] FCAFC 13 at [66] (Dowsett, Tracey and Katzmann JJ).

21    Further, it is clear that the applicant was permitted to comment on his broader drug use, as identified by the Tribunal at [102]:

However, it is significant that by [the applicant’s] own evidence, he has taken drugs (amphetamines) five times since the January 2021 collision. [The applicant] said the last time he had used drugs was in the first week after he arrived at Villawood being in about April 2025. He said it was a “stressful period”. He said he used a small amount of amphetamine and then raised it with his drug and alcohol counsellor. He said, “the moment I had it, I wished I hadn’t”. A week later he was subjected to a drug test at Villawood. He said he received a “dirty urine analysis”, and that he was “disappointed in himself”.

22    The applicant’s legal representatives also lodged a statement of facts, issues and contentions on his behalf which stated at [24] that the majority of his offending was attributable to his illicit drug use.

23    In addition, on a fair reading of the Tribunal’s decision, its finding that there remained a real risk of the applicant reoffending was not solely premised on his recent amphetamine use. Rather the Tribunal considered that the applicant would revert to drug use in the face of new challenges and stressors, and that the strategies and plans which he had developed would be insufficient to prevent relapse: [184]–[185]. The Tribunal found that the applicant had “longstanding issues with self-control, self-regulation and drug dependency”, which would continue to manifest especially under stress or pressure: [189].

24    I accept Ms Milojkovic’s evidence in paragraphs 3 and 4 of her affidavit of 24 May 2026 which I have quoted above. However, the lack of any questioning by the Tribunal of the applicant in relation to his use of illicit substances does not establish a breach of procedural fairness. The applicant himself volunteered the relevant material, on an issue of obvious relevance to his application, and procedural fairness did not require questioning from the Tribunal.

25    Accordingly, there was no denial of procedural fairness to the applicant, as he had a reasonable opportunity to address his broad history of drug use and its impact on his reoffending risk. Given the nature of the material before the Tribunal, including applicant’s own evidence, it was readily apparent that his broader drug use, and his amphetamine use in particular, together with the risks they posed to the community, would likely be of central significance to the proceedings. For these reasons, I make the above orders.

Associate:

Dated:    25 May 2026