Federal Court of Australia

Kuot v Minister for Immigration and Citizenship [2026] FCA 825

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to file his originating application be granted.

2.    A writ of certiorari be issued quashing the decision of the second respondent made on 8 August 2025.

3.    A writ of mandamus be issued remitting the applicant’s application for review to the second respondent for determination according to law.

4.    The first respondent is to pay the applicant’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    The applicant is a citizen of South Sudan who came to Australia from the Kakuma refugee camp in Kenya at the age of 14. The applicant most recently held a Class XB Subclass 202 Global Special Humanitarian visa (Visa).

2    In 2021, the applicant’s Visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (First Visa Cancellation) and he sought revocation of that cancellation. The delegate of the first respondent (the Minister) decided not to revoke the cancellation (First Non-revocation Decision), and the applicant sought review of that decision by the (then) Administrative Appeals Tribunal (First Tribunal).

3    On 31 July 2023, the First Tribunal set aside the delegate’s decision and revoked the First Visa Cancellation (2023 Tribunal Decision or 2023 TD) on the basis that, among other things, doing so was in the best interests of the applicant’s four children.

4    On 13 August 2024, the applicant was convicted in the Local Court of New South Wales at Burwood of the offences of “assault occasioning actual bodily harm” and “remain in building/land with intent to commit an indictable offence”. On 2 October 2024, the District Court of New South Wales sentenced the applicant to two years imprisonment.

5    On 24 September 2024, the applicant’s visa was mandatorily cancelled for the second time (Second Visa Cancellation). On 12 May 2025, the applicant was notified that the delegate of the Minister (the Delegate) decided not to revoke the mandatory cancellation under s 501CA(4) of the Migration Act on the basis that the Delegate was not satisfied that the applicant passed the character test under s 501 of the Migration Act or that there was another reason why the Second Visa Cancellation should be revoked (Second Non-revocation Decision). The applicant applied to the Administrative Review Tribunal (Second Tribunal) for a review of the Second Non-revocation Decision.

6    On 8 August 2025, the Second Tribunal affirmed the Second Non-revocation Decision: see Kuot and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 3055 (8 August 2025) (2025 Tribunal Decision or 2025 TD).

7    By his present application before the Court, the applicant seeks an extension of time under s 477A(2) of the Migration Act to lodge his application for judicial review of the 2025 Tribunal Decision. By his Draft Amended Originating Application for Review of a Migration Decision (Originating Application) dated 12 March 2026, the applicant advances the following grounds of review:

(a)    in considering the best interests of the applicant’s children, the Second Tribunal ignored relevant material (Ground 1);

(b)    the Second Tribunal’s findings regarding the best interests of the applicant’s children were formed in a way that was irrational, illogical and/or legally unreasonable (Ground 2); and

(c)    the Second Tribunal denied procedural fairness to the applicant in forming its findings on the best interests of his children (Ground 3).

8    The application for an extension of time was not opposed by the Minister. For the reasons that follow, I have decided that (a) the application for an extension of time should be granted, (b) Ground 1 should be upheld, and (c) each of the other Grounds should be dismissed.

2.    BACKGROUND

9    It is common ground that the applicant has four children: the first (Child L) is the child of his former partner (Ms K) and with whom he had a parenting relationship; the second (Child H) and third (Child LY) are the applicant’s biological children with Ms K; and the fourth (Child Z) is the applicant’s child with another woman (Ms D): 2025 TD [229]-[230].

10    It was also common ground that the applicant lived with Ms K and Child L, Child H and Child LY in Wagga Wagga until he separated from Ms K in 2018. The applicant has never lived with Child Z and had much more limited contact with him than with his other children. Shortly after the birth of his fourth child, on 23 October 2018, the applicant sustained a brain injury when he was attacked by a group of people in Wagga Wagga. The applicant has not had physical contact with any of the children since January 2021, when he was imprisoned.

11    Over the years, the applicant has been convicted of several offences. There were two other offences in respect of which the applicant was found guilty, but no conviction was recorded. The applicant’s convictions were summarised at 2025 TD [45] as follows:

The Tribunal has summarised the Applicant’s convictions below, excluding those charges where the Applicant received a finding of guilt but no conviction, traffic offences and also a charge which was taken into account on a ‘Form 1’ basis.

•    On 21 September 2011, he was convicted in the Burwood Local Court for a range of offences, including Affray-T1, Assault occasioning ABH in company of other(s) and Resist officer in execution of duty-T2.

•    On 14 December 2011, he was convicted in the Parramatta District Court for Affray-T1 and Assault with intent to rob in company-SI.

•    On 19 December 2011, the Applicant was convicted in the Parramatta Local Court of Affray-T.

•    On 16 January 2012, the Applicant was convicted in the Parramatta Local Court of Destroy or damage property <=$2000-T2 and Armed w/int commit indictable offence-T1.

•    On 21 August 2013, the Applicant was convicted in the Cooma Local Court of Assault occasioning actual bodily harm, Stalk/intimidate with intention to cause physical fear and two counts of Assault officer in execution of duty.

•    On 17 June 2019 the Applicant was convicted in Wagga Wagga Local Court of Destroy or damage property (less than $2000) and Resist officer in execution of duty-T2.

•    On 19 June 2019, the Applicant was convicted in Wagga Wagga Local Court of Assault occasioning actual bodily harm (DV)-T2.

•    On 13 January 2021 the Applicant was convicted in Wagga Wagga Local Court of Resist officer in execution of duty-T2; Custody of knife in public place and Destroy or damage property (DV).

•    On 6 April 2022, the Applicant was convicted in Wagga Wagga District Court of Steal from the person value <=$2000-T2 and Robbery-T1.

•    On 13 August 2024, the Applicant was convicted in Burwood Local Court of Assault occasioning actual bodily harm T2 and Remain in building/land w/I commit indictable offence.

12    These convictions and other conduct are outlined in further detail in the 2025 Tribunal Decision at [57] - [162]. It is unnecessary to add to what is there said for present purposes.

13    Following the applicant’s release from prison in November 2024, the applicant was detained in Villawood Immigration Detention Centre where he currently resides: TD 2025 [8].

3.    EXTENSION APPLICATION

14    Section 477A of the Migration Act provides as follows:

477A    Time limits on applications to the Federal Court

(1)    An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

(3)    In this section:

date of the migration decision has the meaning given by subsection 477(3).

(4)    For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).

(5)    To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

15    Section 477(3) of the Migration Act relevantly provides:

(3)    In this section:

date of the migration decision means:

(a)    in the case of a migration decision made under section 105 of the ART Act (other than a decision made by the ART in relation to an application under Part 5)—the day the decision is made under that section; or

(b)    in the case of a migration decision made by the ART in relation to an application under Part 5—the day the decision is taken to have been made under subsection 368(6) or (7) or 368B(3); or

(c)    in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

16    The 2025 Tribunal Decision was made on 8 August 2025. This meant that the last date for filing the application for judicial review of the 2025 Tribunal Decision was 12 September 2025. The applicant filed his application for an extension and an earlier version of his Originating Application on 22 October 2025. The application was filed 40 days after the “date of the migration decision”. As noted above, the Minister consented to the grant of the extension.

17    In determining whether an extension of time is necessary in the interests of the administration of justice under s 477A(2), there are no mandatory relevant considerations but factors relevant to the exercise of the Court’s discretion may include the length of the delay, the explanation for the delay, the prejudice to the Minister or third parties (if any) caused by the delay and the merits of the proposed application: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

18    I accept the applicant’s explanation for the delay, being that at the time of the 2025 Tribunal Decision, the applicant was detained in Villawood Immigration Detention Centre with limited access to internet and phone services, and that owing to an acquired brain injury and lack of English literacy, he required the assistance of a lawyer to commence proceedings in this Court. The applicant experienced difficulties communicating with Legal Aid, to whom he had been referred by the Refugee Advice & Casework Service and there was some further delay occasioned by the requirement for Legal Aid to be satisfied that the application did not have “no reasonable prospect of success” as required under s 486E of the Migration Act.

19    Having regard to the period of the delay, the unchallenged explanation for the delay given by the applicant, the fact that there is no indication that the Minister or any third party would be prejudiced by the applicant’s delay and the fact that the matters raised in the Originating Application are sufficiently arguable to justify the extension of time, I am satisfied that the requirements in section 477A(2) of the Migration Act have been met.

20    Accordingly, I will order that the extension of time sought by the applicant be granted.

4.    GROUND 1: FAILURE TO CONSIDER RELEVANT MATERIAL IN CONSIDERING BEST INTERESTS OF CHILDREN

21    The applicant submits that the Second Tribunal fell into jurisdictional error by ignoring “relevant material”, being the reasons of the First Tribunal in the 2023 Tribunal Decision: relying upon Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (Robertson J); see also Jabari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 98; 298 FCR 431 at [55] (Katzmann, Jackson and McEvoy JJ).

22    It is uncontroversial that the Second Tribunal was required to comply with Direction 110. Paragraph 8.4 of that direction provides that in making a decision under s 501(2) of the Act, the “best interests of minor children in Australia” who are to be affected by the decision are a “primary consideration”. It is unnecessary to further detail the specific aspects of paragraph 8.4 of Direction 110, as those matters were not in issue between the parties.

23    The applicant contended that in considering the “best interests of minor children”, the Second Tribunal failed to consider relevant material, specifically, the findings made by the First Tribunal in the 2023 Tribunal Decision in relation to the applicant’s relationship with relevant minor children. The Minister denies these contentions. It is convenient to outline the respective parties’ contentions before turning to address why I am satisfied that Ground 1 should be upheld.

4.1    The parties’ contentions

24    It is necessary to set out the relevant history of the hearing before the First Tribunal and the critical aspects of the 2023 Tribunal Decision before turning to address the applicants’ contentions as to the error he alleges was committed by the Second Tribunal.

25    In the proceedings before the First Tribunal, the applicant was legally represented. In those proceedings, evidence was adduced before the First Tribunal as to the best interests of the applicant’s children.

26    In relation to the applicant’s first three children, Ms K had provided a written statement in which she said:

(a)    “[the applicant] was a good dad to all of our kids. He worked hard to support us with money. I would look after the cooking and the kids, and [the applicant] helped with everything around the house, spent a lot of time with the kids to give me a break, and he would take us out to the shops or appointments”;

(b)    after the applicant and Ms K broke up, the applicant would “regularly come to my home to give money for the kids and to spend some time with them”;

(c)    removal of the applicant “would devastate all of us. It would have a really big impact on the kids, especially [Child 2] because they are really close. All the kids really love [the applicant].”

27    Ms K also gave oral evidence before the First Tribunal and was cross-examined.

28    Also in evidence before the First Tribunal were letters written by the three children who had been part of the applicant and Ms K’s household, which expressed affection for the applicant. There was also evidence in the nature of family photos of the applicant with these children.

29    There was more limited evidence of the applicant’s relationship with Child 4. Ms D provided a written statement to the First Tribunal, as well as photographs of the applicant with Child 4. She did not, however, give oral evidence.

30    The 2023 Tribunal Decision contained the following findings in relation to the primary consideration:

(a)    after the breakdown of the applicant’s relationship with Ms K, he continued to visit Child L, Child H and Child LY at her home “every afternoon after work until he was arrested in January 2021”: TD 2023 at [74];

(b)    the applicant had “played a very active parental role in [the children’s] lives until he was taken into custody in January 2021”: TD 2023 at [75];

(c)    the applicant telephoned Child L, Child H and Child LY “once a week while he was in prison because of his limited access to telephone calls”: TD 2023 at [74];

(d)    after going into immigration detention, the applicant had spoken to Child L, Child H and Child LY “every day”: TD 2023 at [74];

(e)    the applicant continued to have a “close on-going relationship” with Child L, Child H and Child LY: TD 2023 at [75]; and

(f)    the applicant had been a “been a father-figure to Child [Z] in the past and may resume that role in the future”: TD2023 at [79].

31    The First Tribunal concluded that the best interests of minor children “weighs significantly in favour of revocation of the visa cancellation decision with respect to Child [L], Child [H] and Child [LY]” and “weighs somewhat in favour of revocation with respect to Child [Z]”: TD 2023 at [82]. In weighing this primary consideration against others, the First Tribunal concluded that “protection of the Australian community, family violence and expectations of the Australian community” were outweighed by a combination of “the strength, nature and duration of ties to Australia and the best interests of minor children in Australia, and … legal consequences of the decision, extent of impediments if removed and impact on victims”: TD 2023 at [129].

32    As noted above, following the First Tribunal’s decision, there was a Second Visa Cancellation and a Second Non-revocation Decision. The applicant then applied to the Second Tribunal for a review of the Second Non-revocation Decision.

33    The applicant was not legally represented in the proceedings before the Second Tribunal and filed no written evidence or submissions. Whilst the Minister provided the Tribunal with the reasons for the 2023 Tribunal Decision, it did not provide the underlying evidence filed by the applicant in that proceeding.

34    Thus, it was common ground that the 2023 Tribunal Decision was before the Second Tribunal.

35    During the course of oral submissions before the Second Tribunal, the applicant indicated that he believed the Tribunal was aware of the evidence given in the proceedings before the First Tribunal. He stated:

…You know, even [Ms K] came and gave evidence when she was here, and that’s my ex-partner.

But this time I didn’t feel like I have to. I have deserved a chance for her to come again and give the same evidence as what – the view of she thinks. I just chose like, you know what? Last time she said it. But I hope that it’s still there – like, the tribunal heard what she was saying. Because that’s not only me saying that, you know – if I’ve got to move because she had a new partner and everything and then the same – they’re trying to say that it wouldn’t make any difference if – but she said, I am the father, that the other guy is only called Carl.

I think there’s her own words, you know? Like, I didn’t make that up, but they didn’t see those photos that I had playing with my kids in the park.…

(Emphasis added.)

36    In the 2025 Tribunal Decision, the Tribunal addressed the primary consideration required by paragraph 8.4 of Direction 110 at [252]-[259]. It is convenient to extract these paragraphs, which are as follows:

8.4    Best interests of minor children in Australia affected by the decision

252.    Paragraph 8.4 of the Direction requires the Tribunal to determine whether (non)-revocation is, or is not, in the best interests of a child affected by the decision, noting that where there are two or more relevant children, individual consideration should be given to the best interests of each child to the extent that their interests may differ.

253.    The Applicant has four minor children in Australia who he contends will be affected by the Tribunal’s decision (G23/146): L aged 12 years, H aged 10 years, LY aged 8 years and Z aged 7 years.

254.    In the documents the Applicant stated he was a good father to his children and used to cook and clean for them and take them out (HB G24/159). He states that his children will be “shattered” if he is removed and they need him in their lives (HB G23/153).

255.    There is minimal evidence of what is in the best interests of the children. The evidence set out earlier in this decision outlines the history of the Applicant’s relationship with his children and the contributions he has made to the family.

256.    Taking the most favourable view of the evidence before the Tribunal, it indicates that the Applicant was living in the same household as the children for a number of year and that he played a part in caring for the children in those years, however, his ability to play a positive role has been limited by drug and alcohol use, periods of detention and imprisonment and acts of domestic violence.

257.    Section 60CC (2) of the Family Law Act 1975 (Cth) provides that when determining the best interests of the child, courts invested with the jurisdiction to determine orders relating to children, must consider

(a)    what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i)     the child; and

(ii)    each person who has care of the child (whether or not a person has parental responsibility for the child);

(b)    any views expressed by the child;

(c)    the developmental, psychological, emotional and cultural needs of the child;

(d)    the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

(e)    the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;

(f)    anything else that is relevant to the particular circumstances of the child.

258.    While there is no reliable evidence on the matters set out above, the Tribunal considers that it is generally in the best interests of children to have a meaningful relationship with both their parents. Although there is evidence of the Applicant’s severe substance abuse disorder, a lengthy criminal history and lack of meaningful personal contact with the children in the last five years, the Tribunal considers that it may be in the best interests of the children to maintain telephone, social media or video contact with the Applicant, subject to the agreement of the mothers or to a court order. However, there is no reason why this form of contact could not be maintained even if the Applicant’s visa was cancelled.

259.    This consideration weighs in favour of revocation of the cancellation.

(Emphasis and additional emphasis added.)

37    In balancing its conclusion that the interests of the applicant’s children weighed in favour of revocation of the cancellation, the Second Tribunal stated at [298]:

The Tribunal considers that the length of time the Applicant has lived in Australia, the ties to his children as well as the best interests of his minor children weigh slightly in favour of revocation, but it does not consider that these considerations outweigh the other considerations which weigh against revocation.

38    In the course of considering the strength, nature and duration of the applicant’s ties to Australia, the Second Tribunal made the following further findings regarding the state of the available evidence regarding the applicant’s children:

240.    The evidence indicate that he and his former partner separated in 2018 and that after separation, he saw his children from time to time but there is no evidence before the Tribunal as to the regularity of that contact. After separation it does not appear that there was a regular pattern of any agreed contact.

241.     Although there is little clear evidence on the extent of his financial contributions to the support of the children, the Tribunal accepts the evidence that the Applicant made some financial contributions to the support of his children while the couple lived together and made some occasional contributions after separation. However, it appears that; given the Applicant’s period of unemployment, his admission that he spent a large portion of his Centrelink benefits on drugs and alcohol and his periods of imprisonment and detention, his financial contribution has been minimal over the years.

242.    The Tribunal accepts that the Applicant feels love and affection for his children and genuinely wants to keep a connection with them. However, for the last five years his only contact with the children has been by telephone or video calls and there is no clear evidence as to the regularity of those calls.

(Emphasis and additional emphasis added.)

39    It will be apparent from these extracts that in considering the best interests of minor children, the Second Tribunal did not refer to the reasons for the 2023 Tribunal Decision or the evidence before the First Tribunal in the 2023 proceeding. However, as the Minister pointed out, the Second Tribunal was clearly aware of the 2023 Tribunal Decision given that it stated at [6]:

The Applicant has a lengthy criminal history which is set out in greater detail later in this decision. In 2021, the Applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act (first visa cancellation) and he sought revocation of that cancellation. The delegate of the Minister decided not to revoke the cancellation, and the Applicant sought review of that decision by the Administrative Appeals Tribunal (AAT). The AAT set aside the delegate’s decision and revoked the cancellation of the Applicant’s visa on 31 July 2023.

(Emphasis added.)

40    The applicant submitted that the Second Tribunal was under a statutory duty to make its decision on the basis of material available to it at the time its decision was made: citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 45 (Mason J), see also 30 (Gibbs CJ), 67 (Brennan J), 70 (Deane J) and 71 (Dawson J); SZRKT at [26]; WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [16] (Lee, Moore and RD Nicholson JJ).

41    The applicant acknowledged that it was not necessary for the Second Tribunal to refer to every piece of evidence and every contention made by the applicant in its reasons: citing Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; 236 FCR 593 at [46] (French, Sackville and Hely JJ). The applicant also acknowledged that, in some circumstances, it could be inferred from the omission of reference to a particular matter that it was not considered to be material by the Tribunal: citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ).

42    However, the applicant submitted that in circumstances where the 2023 Tribunal Decision made reference to the evidence as to the applicant’s relationship and ongoing contact with the relevant children, it should be inferred that the Second Tribunal failed to consider (or ignored) these parts of the 2023 Tribunal Decision. This was said to be demonstrated by the Second Tribunal’s statements that there was “minimal” or “no reliable” evidence about the children’s best interests in general (at [255], [258]), and that there was “no evidence” as to the regularity of the applicant’s contact with his first three children after his separation from Ms K (at [240]) and “no clear evidence” as to the regularity of the applicant’s calls with his children since his incarceration/detention (at [242]).

43    The applicant submitted that the Second Tribunal had erred because (a) the 2023 Tribunal Decision constituted “material” that was before it, (b) that material was “substantial and consequential”, and (c) it failed to consider or ignored this material: relying upon Manebona v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 402 (Stewart J); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398 (Viane HCA) at [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ).

44    The Minister submitted that the Second Tribunal had considered the reasons for the 2023 Tribunal Decision, as was apparent from the 2025 Tribunal Decision at [6]. The Minister also pointed out that the Second Tribunal again referred to the 2023 Tribunal Decision in its own decision at [176], as follows:

176.    The evidence before the Tribunal is that in 2023 the Applicant’s visa was cancelled and his request for revocation was refused. The AAT revoked the mandatory cancellation of his visa (first visa cancellation) (HB G27/194). The Tribunal considers that the process which the Applicant went through to have his visa revoked was lengthy and that he appeared before the AAT to give evidence. The Tribunal considers the cancellation and the process the Applicant went through before his visa cancellation was revoked should have been a compelling warning that if he engaged in further offending, his visa could be cancelled.

(Emphasis added.)

45    The Minister submitted that in light of the fact that the Second Tribunal was clearly aware of and had regard to the 2023 Tribunal Decision, the Second Tribunal’s statements and findings to the effect that there was “no evidence” or “no reliable evidence” before the Tribunal about the regularity of the contact between the applicant and his children (TD 2025 at [240]) should be read as meaning that there was no “witness evidence” in the nature of statements, letters or oral evidence from any witnesses. The Minister submitted that the Second Tribunal was not obliged to “recite the detail of each and every part of the voluminous material before it”: relying upon, amongst other authorities, Applicant WAEE at [46]. Relying upon Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 (Viane FFC 1) at [28] (Reeves, Rangiah and Colvin JJ), the Minister submitted that, whether the Second Tribunal’s decision was affected by jurisdictional error “depends upon the circumstances of the case and the nature of the material, including the cogency of the material and its place in the assessment of the applicant’s claims”.

46    Relying upon these matters, the Minister submitted that it could not be inferred that the Second Tribunal had not considered or had ignored the 2023 Tribunal Decision. It was submitted that it was entirely accurate for the Second Tribunal to have stated that there was “no evidence” before it in relation to the matters it addressed. Further, it was submitted that the Second Tribunal’s finding at [242] that “for the last five years his only contact with the children has been by telephone or video calls and there is no clear evidence as to the regularity of those calls” was not inconsistent with and did not overlook the evidence to the 2023 Tribunal Decision which did not cover this period of five years.

4.2    Consideration

47    I am satisfied that Ground 1 should be upheld.

48    It is, of course, trite that the Second Tribunal was not bound by the rules of evidence and was entitled to inform itself on any matter in such manner as it thought appropriate: s 53 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). It is also uncontroversial that that the Tribunal was under a general and implicit statutory duty to make its decision on the basis of material available to it at the time its decision was made: Peko-Wallsend Ltd at 45 (Mason J), see also at 30 (Gibbs CJ), at 67 (Brennan J), at 70 (Deane J) and at 71 (Dawson J); SZRKT at [26]; WAIJ at [16].

49    The “material” available to the Second Tribunal was not limited to evidence in the nature of witness statements or oral testimony. As Jackson J explained in Donevski v Minister for Immigration and Citizenship [2026] FCA 248 at [39], “[i]t is also important to take care in relation to the use of the word “evidence” in this context; an administrative decision maker is not bound by the laws of evidence and the Tribunal was entitled to inform itself on any matter in such manner as it thought appropriate”: citing L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] (Basten J). For example, in Viane HCA, in the context of a decision made by the Minister based on personal and specialised knowledge built up over many years, Keane, Gordon, Edelman, Steward and Gleeson JJ stated at [17]:

If the Minister exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister’s personal or specialised knowledge or by reference to that which is commonly known.

(Emphasis added.)

50    In the present case, the Minister accepted that the 2023 Tribunal Decision was “material” that was before the Second Tribunal, but submitted that it was not bound to consider every aspect of the material that was before it, especially in circumstances where no specific reliance was placed on that material (ie the 2023 Tribunal Decision): T23.21-45.

51    It is to be accepted, as the Minister contended, relying upon Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [23]-[25] (Kiefel CJ, Keane, Gordon and Steward JJ), that the “requisite level of engagement” required of the Second Tribunal depended on the nature of the representations or claims made by the applicant, and the Second Tribunal was not required to consider claims that did not clearly arise in the materials. It is also to be accepted that, as the Full Court held in Applicant WAEE at [46], it is not an error for the Second Tribunal to have failed to refer to every item of evidence. And, further, the inference that the Second Tribunal failed to consider material is “not too readily to be drawn”: Applicant WAEE at [47]. As the Minister further submitted, the correct approach is that stated by the Full Court in Viane FFC 1 at [28]:

In the context of an application for a protection visa, it has been held that whether a tribunal commits a jurisdictional error by failing to consider particular documents or other material depends upon the circumstances of the case and the nature of the material; including the cogency of the material and its place in the assessment of the applicant’s claims: see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; 302 ALR 572; 136 ALD 41; [2013] FCA 317 (SZKRT) at [111]–[112]; MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431; 136 ALD 547; [2013] FCAFC 114 at [68]–[70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [52]–[56]. In SZRKT, Robertson J explained at [111]:

The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error.

(Emphasis added.)

52    This decision of the Full Court was not the one which was overturned in Viane HCA. It accords with other Full Court authority. For example, in Jabari, the Full Court stated at [55]:

The requisite degree of consideration is affected by the centrality, to the issues, of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed in the representations: Singh v Minister for Home Affairs (2019) 267 FCR 200 at [37(1)] (Reeves, O'Callaghan and Thawley JJ). It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (Applicant WAEE) at [46]. The fundamental question is the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111] (Robertson J).

(Emphasis added.)

53    The Minister’s acceptance that the 2023 Tribunal Decision was “material” that was before the Second Tribunal was, in my view, a fair and correct characterisation. It accords with Stewart J’s reasoning in Manebona at [64]-[65] that, although the reasons of an earlier tribunal were “not evidence”, those reasons formed part of the “material” before a subsequent tribunal. I agree with Stewart J’s reasoning, and it is applicable here.

54    The primary consideration contained in paragraph 8.4 of Direction 110 relating to the best interests of minor children was an issue that was central to the determination of the statutory task that the Second Tribunal was discharging in conducting a review of the Non-revocation Decision. It was a prominent issue in the hearing before the Second Tribunal. That it was a central and prominent issue before the Second Tribunal is manifest from the brief oral submissions that the applicant made (as set out above at [35]) to the effect that Ms K had given evidence on the last occasion and he did not “feel” as if he had to adduce that evidence again and he “hope[d] it’s still there…the tribunal heard what she was saying…[that was not] only me saying that.” It is also manifest from the fact that during the hearing before the Second Tribunal, the applicant was cross-examined by a solicitor appearing for the Minister, during which, amongst other things, it was put to the applicant that a submission would be made that he was a “father in name only”: T120.12-.14. Written and oral submissions were also made on behalf of the Minister as to the best interests of minor children including that there was “no evidence” from the mothers of the applicant’s children: T144.5–.6.

55    There are at least four respects in which the 2023 Tribunal Decision may be characterised as being “material” or containing “material” that was before the Second Tribunal. First, the 2023 Tribunal Decision, as a decision of an earlier tribunal, was itself material that was before the Second Tribunal. However, that fact alone may not have been relevant to the central or prominent issues before the Second Tribunal. Second, the 2023 Tribunal Decision referred to and summarised the evidence that was adduced or was before the First Tribunal. The underlying evidence was not placed before the Second Tribunal and so the only material before the latter Tribunal was the First Tribunal’s reasons. Third, the 2023 Tribunal Decision contained findings, but not all of those findings may have been centrally relevant to the issues before the Second Tribunal. Fourth, the 2023 Tribunal Decision contained specific findings in relation to the applicant and his relationship with his children (including the regularity of his contact with them), the attitudes of those children, and the attitudes of the mothers of those children (Ms K and Ms D). It is in this latter respect that I consider that the findings made by the First Tribunal constituted “material” that was clearly relevant to central and prominent issues before the Second Tribunal. It is these parts of the First Tribunal’s reasons that I consider the Second Tribunal did not consider and failed to have regard to.

56    Contrary to the Minister’s submissions, I am satisfied that, although the Second Tribunal was aware of and referred to the 2023 Tribunal Decision in its reasons at 2025 TD at [6] and [176], it failed to consider important aspects of that Decision in addressing the primary consideration in paragraph 8.4 of Direction 110, including as to the applicant’s relationship with his children. The Second Tribunal only appears to have had regard to the fact of the 2023 Tribunal Decision, as opposed to anything that was relevant as contained in that Decision. I do not accept the Minister’s submission that no attention was drawn to these matters. Whilst no specific attention was drawn to the relevant paragraphs of the 2023 Tribunal Decision, in his oral submissions before the Second Tribunal, the applicant expressly made reference to the evidence Ms K had given on the last occasion and said that he hoped it was “still there” and that “the tribunal heard what she was saying”.

57    The Full Court in Jabari stated at [55(5)]:

Whether or not a matter has been considered can be a matter of inference drawn from the reasons as a whole. For example, there may be material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it: SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34 at [19] (Perram J). On the other hand, the inference that a failure to set out reasoning in relation to a matter signifies a failure to consider it should not be drawn too readily where the reasons are otherwise comprehensive and the issue has at least been identified at some point: Applicant WAEE at [47].

58    In my view, the compelling inference is that the Second Tribunal did not consider or have regard to the findings that the First Tribunal had made in relation to the applicant’s relationship with his children and related matters.

59    As referred to above at [30], the First Tribunal made findings (based on the evidence before it from the applicant, Ms K and Ms D) that even after the breakdown of the applicant’s relationship with Ms K, the applicant continued to visit Child L, Child H and Child LY at her home “every afternoon after work until he was arrested in January 2021”: TD 2023 at [74]. The material also included the finding that the applicant had “played a very active parental role in [the children’s] lives until he was taken into custody in January 2021”: TD 2023 at [75]. And that, even after going into immigration detention, the applicant had spoken to Child L, Child H and Child LY “every day”: TD 2023 at [74]. True it is that the Second Tribunal did not have the evidence upon which the First Tribunal had made these findings, and that evidence was given at a point in time that was some two years beforehand, the findings made by the First Tribunal were nevertheless part of the material that was before the Tribunal: eg see Manebona at [67]-[68].

60    As further noted above, in its reasons, the Second Tribunal stated that there was “minimal evidence” as to what was in the best interests of the relevant children: TD 2025 at [255]. Further, at TD 2025 at [256], the Second Tribunal reasoned that, taking the most favourable view of the “evidence” before that Tribunal, the applicant had lived in the same household as the children and “played a part in caring for the children in those years”. After referring to s 60CC(2) of the Family Law Act 1975 (Cth), the Second Tribunal stated at 2025 TD [258] that there was “no reliable evidence” as to the matters specified in that section, including as to the views expressed by the relevant children. At [240], the Second Tribunal stated that there was “no evidence before the Tribunal” as to the regularity of the contact that the applicant had with the children after he separated from Ms K in 2018. And, at [242], the Second Tribunal stated that, whilst the applicant had been in contact with the children by telephone or video calls over the last five years, there was “no clear evidence as to the regularity of those calls”.

61    Each of these findings made by the Second Tribunal was at odds with the findings that the First Tribunal had made. The Second Tribunal’s finding that the evidence indicated that the applicant had played a part in caring for the children whilst he lived in the same household was at odds with the First Tribunal’s finding that the applicant had “played a very active parental role” in the children’s lives until he was taken into custody in 2021, which was after his relationship with Ms K had broken down in 2018. The Second Tribunal’s findings as to there being “minimal evidence” or “no reliable evidence” about matters relating to the best interests of the children were at odds with the findings made by the First Tribunal as to the evidence given by Ms K and Ms D, respectively. The Second Tribunal’s finding at 2025 TD at [240], [242] and [258] to the effect that the applicant had lacked “meaningful personal contact with the children in the last five years” and that there was no clear evidence as to the regularity of calls between the applicant and the children in the last five years was at odds with the First Tribunal’s finding that the applicant visited Child L, Child H and Child LY at Ms K’s home “every afternoon after work” until he was arrested in 2021, and had spoken to each of these children “every day” since going into immigration detention.

62    Whilst it may be that (as Counsel for the Minister submitted), the Second Tribunal’s reference in TD 2025 at [240], [242], [255]-[256] and [258] to the word “evidence” was an indication that the Second Tribunal was focussed upon the absence of witness statements and oral evidence, that only reinforces that the Second Tribunal did not consider or have regard to the findings made by the First Tribunal in relation to matters that were centrally relevant and prominent to the review that the Second Tribunal was conducting. As noted above, those findings were part of the material before the Second Tribunal to which it did not have regard.

63    I am satisfied that the compelling inference to be drawn from the Second Tribunal’s reasons as a whole is that it did not consider material (in the nature of the findings made by the First Tribunal relating to the best interests of the relevant children). That material was so obviously relevant that it is unthinkable that the Tribunal would not have referred to it had it actually considered it. For example, it is unthinkable that the Second Tribunal would find that the applicant had only played a parental role in the lives of Child L, Child H and Child LY whilst he lived in the same household as them, when the 2023 Tribunal Decision stated that he had visited those children every afternoon after work even after the applicant and Ms K had separated.

64    It would have been open to the Second Tribunal to have considered the relevant findings made by the First Tribunal, but decide to place no weight on them or reject them for other reasons including because no evidence was called at the hearing before the Second Tribunal or due to the passage of time, but I am not satisfied that this is what the Second Tribunal did. This type of reasoning is not apparent from the Second Tribunal’s reasons. That supports the inference that the Second Tribunal did not consider or ignored the relevant findings made by the First Tribunal. Accordingly, I am satisfied that the Second Tribunal did not consider the relevant findings of the First Tribunal relating to the best interests of the relevant children.

65    The Minister also submitted that reasonableness and rationality also required that the Tribunal not make its findings of fact by reference to dated material: relying upon Ba v Minister for Immigration and Multicultural Affairs [2025] FCA 1239 at [86]-[95] (Neskovcin J); GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 at [41] and [51]-[54] (Bennett J); LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209; 179 ALD 299 at [48], [100] (Charlesworth J). It may be accepted that it was open to the Second Tribunal to consider the material and come to a different view of what it disclosed, but as I have already noted, there is no indication that the Second Tribunal turned its mind to those considerations.

66    It follows that I am satisfied that the Second Tribunal erred by failing to consider relevant material. I am also satisfied that error was material in the sense discussed in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). Specifically, I am satisfied that had the Second Tribunal not engaged in the relevant error, the outcome “could” have “realistically” been different: LPDT at [13]-[17]. That is because the weight afforded to the relevant primary consideration could have realistically been greater and that could have affected the overall outcome of the application.

5.    GROUND 2: FINDINGS REGARDING BEST INTERESTS OF CHILDREN WERE IRRATIONAL, ILLOGICAL AND/OR LEGALLY UNREASONABLE

67    The applicant alternatively submitted that the Second Tribunal’s findings regarding the lack of evidence before it relating to the best interests of the applicant’s children were irrational, illogical and/or legally unreasonable in circumstances where both the reasons themselves (see [30]-[31] above) and the applicant’s oral submissions during the 2025 Tribunal hearing (see [35] above) disclosed the existence of evidence relied upon in the 2023 proceeding that had not been put before the Second Tribunal in the 2025 proceeding.

68    The applicant submitted that it was open to the Second Tribunal to require the Minister to lodge the evidence that was before the First Tribunal in the 2023 proceedings under s 500(6K) of the Migration Act, or to request that evidence from the applicant. The applicant submitted that it was so obvious that the evidence before the 2023 Tribunal is “centrally relevant to the decision to be made” and “readily available” that by making the 2025 Tribunal Decision “without making any attempt to obtain” that evidence “may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it”: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 (Wilcox J). The applicant submitted that this was especially the case given: (a) the failure of the Minister to comply with his obligation to provide the Tribunal with the evidence referred to in the reasons for the 2023 Tribunal Decision; (b) that the applicant’s oral submissions during the 2025 Tribunal hearing (see [35] above) suggested he mistakenly believed this evidence was before the Second Tribunal; and (c) that nothing would have precluded the Second Tribunal from obtaining the evidence and considering it at the 2025 hearing.

69    I do not accept the applicant’s submissions.

70    While “it may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review” (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); see also Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 280 CLR 265 at [25] (Gageler CJ, Gordon, Edelman, Gleeson, and Jagot JJ), I do not consider that the Second Tribunal erred as alleged by the applicant.

71    In DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229; 289 FCR 346, the appellant argued inter alia that it was legally unreasonable for the Tribunal not to have inquired or adjourned its hearing to enable material to be put before it regarding non-refoulement. At [80]-[82], Bromwich, Anastassiou and Anderson JJ held:

80.     In terms of the alleged unreasonableness, or illogicality components of the unreasonableness grounds, the Appellant’s contentions misunderstand the duty of the Tribunal. The Tribunal is not required to construct a case for a review applicant: Abebe v Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ, and nor is it under any general duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43] per Gummow and Hayne JJ. Rather, it is for a review applicant to put before the Tribunal the material that they wish to be taken into account and to satisfy the Tribunal of relevant statutory requirements: Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] per Davies, Derrington and Colvin JJ.

81.     Contrary to the appellant’s contentions, the mere fact that the Tribunal has at its disposal the power to elicit for itself information which an applicant cannot themselves put forward by force of s 500(6H) of the Act does not render it legally unreasonable (or otherwise illogical or erroneous) for the Tribunal not to exercise that power. Were that not so, the Tribunal could conceivably be required to seek to bolster a review applicant’s evidence in every case before it, regardless of the content of the written material put before it by an applicant, thereby rendering s 500(6H) of the Act (and s 500(6J)) inutile. The comments made by the High Court in Minister for Home Affairs v DUA16 [2020] HCA 46 (DUA16), cannot in this regard be taken as a statement of general principle; they were uttered (as the High Court itself noted) in respect of a case the circumstances of which “[we]re extreme”. Regard needs only to be had to the unique facts of DUA16 to appreciate that the appellant’s reliance on it is misplaced. Nor did the High Court in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 (Uelese) suggest that the ability of the Tribunal to ask questions of a review applicant altered its essential function or the review process, or otherwise gave rise to a general duty to inquire.

82.     In the present case, it is evident that the Tribunal was aware that it had the power to ask questions of the appellant and thereby obtain information that he could not himself give in chief by reason of s 500(6H) of the Act. There is, therefore, no basis to infer that the Tribunal failed to consider whether to exercise that discretion (or any of its broader powers) to elicit further information relating to the appellant’s non-refoulement claims. It should also be noted that the appellant’s counsel agreed that it would undermine the purpose evident in s 500(6H) of the Act for the Tribunal simply to ask the questions itself (T.65 lines 36-40) to overcome the effect of the statutory prohibition. In those circumstances, and absent the appellant establishing that the Tribunal misunderstood or misapplied s 500(6H) of the Act (which, for the reasons given above, it did not do), it was not legally unreasonable for the Tribunal not to have exercised its discretion to obtain information from the appellant to “fill in” the evidentiary gap that he had left. In this connection, it is not irrelevant to the question of whether the Tribunal acted unreasonably that the appellant was represented during the merits review process. The appellant could have had his former legal representative prepare a detailed statement on his behalf that canvassed his claims to invoke Australia’s international non-refoulement obligations and identified the harm that he feared, whether and why that fear was current, from whom he feared harm and what he believed might happen to him if he were to be returned to the Congo. That however, was not done.

72    In the present case, I do not consider that the inquiries alleged by the applicant were “obvious”. The 2023 Tribunal Decision was already before the Second Tribunal. As set out above, that Decision summarised the relevant evidence given by the applicant, Ms K and Ms D, and also related material such as letters from some of the children and photos. Further, the applicant was given ample opportunity to adduce written and oral evidence, including from witnesses. During the hearing before the Second Tribunal, the Tribunal member asked the applicant open-ended questions affording him a reasonable opportunity to give evidence concerning his children and that extended to the nature of his relationship with them: T29ff. In those circumstances, even despite the applicant having told the Second Tribunal that there had been evidence before the First Tribunal, I do not consider that it was an obvious enquiry for the Second Tribunal to ask the applicant or the Minister to provide that material when more than ample opportunity had been given for the applicant to put that material before the Tribunal. Further, as the Minister pointed out, many of the findings made by the First Tribunal were based on Ms K’s oral evidence, but neither the Minister nor the applicant had a transcript of the hearing before the First Tribunal such that the oral evidence given during that hearing could not have been provided by either party. The applicant did not suggest otherwise.

73    I am not satisfied that the applicant has established Ground 2 and accordingly, it should be dismissed.

6.    GROUND 3: FAILURE TO PROVIDE PROCEDURAL FAIRNESS

74    The applicant’s third ground of appeal is that the Second Tribunal denied him procedural fairness by making adverse findings relating to the best interests of his children where those findings failed to consider evidence which the applicant reasonably believed was before the Second Tribunal.

75    The applicant submitted that the Second Tribunal’s power to exercise its review function was conditioned by a requirement to afford procedural fairness, which generally requires that a person affected be given the opportunity of “ascertaining the relevant issues and to be informed of the nature and content of adverse material”: Hodgson v Minister for Immigration and Citizenship [2026] FCA 149 at [52] (Snaden J), citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 (McHugh, Gummow, Hayne and Callinan JJ)); Commissioner for Australian Capital Territory v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 at 590-591 (Northrop, Miles and French JJ). The applicant submitted that the failure of the Second Tribunal to put the applicant on notice of the substance of its adverse findings that there was an absence of evidence relating to the best interests of his children prior to those findings being made deprived the applicant of the opportunity to address those findings by providing evidence to the Tribunal.

76    The applicant submitted that he was entitled to assume that the evidence given to the Tribunal as part of the 2023 proceeding would form part of the materials before the Tribunal in the 2025 proceedings on the basis that:

(a)    s 501G(2)(d)-(f) of the Migration Act required the Minister to provide all documents that were in the possession of the Minister’s delegate “relevant to the making of the decision”;

(b)    he expressed to the Tribunal that he understood the evidence from the 2023 Tribunal proceedings was before the Tribunal (see [35] above);

(c)    the Tribunal member did not inform the applicant that Ms K’s evidence (and other evidence from the 2023 Tribunal proceedings) was not before the Tribunal and instead said the following at the conclusion of the hearing (at T.151.21-.27):

So the next step for me is to consider all the evidence that’s been provided and to make a decision – whether I set aside the delegate’s decision not to revoke your visa cancellation.

I’ve listened to everything you’ve said, evidence been given and the material that’s been provided. And the next step for me is to make a decision, which will be set out in writing and will be given before the last date, as I explained to you that there - - -

(d)    at the time of the hearing before the Second Tribunal, the applicant suffered from a traumatic brain injury, was not legally represented, was not literate in English and was not provided a copy of the Hearing Book prior to the commencement of the hearing by which he could confirm whether his evidence from the 2023 Tribunal proceeding was before the Tribunal.

77    I do not accept the applicant’s submissions.

78    Section 55(1) of the ART Act provides that the Tribunal must ensure that each party to a proceeding is given a “reasonable opportunity” to present their case, access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding, and make submissions and adduce evidence. The Tribunal is not required to provide “every opportunity” or an “optimal” opportunity: Minister for Immigration and Citizenship v LLR24 [2026] FCAFC 26 at [53] (O'Sullivan, Mcelwaine, Hill JJ); Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 159; 300 FCR 106 at [31] (Rares, Bromwich and Raper JJ). As the Full Court noted in LLR24:

The procedural fairness hearing rule requires in general terms 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 & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ); Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 102 at [55] (the Court). More specifically, procedural fairness requires a decision-maker to advise a person likely to be affected by the decision of any “issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made”, as well as any “adverse conclusion which has been arrived at which would not obviously be open on the known material”, although a decision-maker is not required to “expose his or her mental processes or provisional views to comment before making the decision in question”: see Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 at 591-592 (the Court); EXT20 v Minister for Home Affairs [2022] FCAFC 72; (2022) 291 FCR 55 at [127], [141] (Wigney J); see also [42] (Mortimer J, dissenting in the result).

79    I am not satisfied that the applicant was entitled to assume that the evidence in the 2023 proceeding would form part of the 2025 proceeding.

80    First, the applicant was on notice that the Delegate considered there was a dearth of information about his relationship with his children on the basis that he elected to leave blank certain questions in the revocation request he completed in response to the Second Visa Cancellation. These included, “[d]escribe your relationship with each of your minor child/ren above, including how often you contact/see the child/ren and the role you play in their life” and “[d]escribe any current impact on your minor children above, and/or any likely impact on them in the event of a negative s501 decision outcome…”.

81    Moreover, when the applicant was notified of the Second Non-Revocation Decision on 12 May 2025, he was also provided with the attachments to that Decision as required under s 501G of the Migration Act which relevantly provides:

(1)    If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person; or

(ba)    not revoke a decision to cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

(c)    sets out the decision; and

(d)    specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)    sets out the reasons (other than non‑disclosable information) for the decision; and

(f)    if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the ART:

(i)    states that the decision can be reviewed by the ART; and

(ii)    states the time in which the application for review may be made; and

(iii)    states who can apply to have the decision reviewed; and

(iv)    states where the application for review can be made; and

(v)    in a case where the decision relates to a person in the migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and

(vi)    sets out such additional information (if any) as is prescribed.

(2)    If the decision referred to in subsection (1):

(a)    was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA; and

(b)    is reviewable by the ART; and

(c)    relates to a person in the migration zone;

the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:

(d)    is in the delegate’s possession or under the delegate’s control; and

(e)    was relevant to the making of the decision; and

(f)    does not contain non‑disclosable information.

82    The attachments that the applicant was provided included a “Statement of Reasons” for the Second Non-revocation Decision which relevantly stated:

91.    Mr KUOT has provided minimal details about the current nature of his relationship with his children. However, Mr KUOT did state that his children need him in their lives (Attachment P). Mr KUOT further stated that he received a phone call from his son asking him to promise to be there to watch his first football match Attachment Q.

…

93.    Mr KUOT stated previously that he worked hard to provide for his children, as well as assisting with their practical care (cooking and cleaning), and would take them to the playground, park, movies and bowling Attachment Q.1. No representations have been received from the children’s mothers to confirm these claims or the duration of Mr KUOT’s involvement in the lives of the children either for this revocation request or any past revocation requests.

…

95.    I am mindful that the best interests of Master Landon, Master Harlon, Miss Layla and Master Zayl, are a primary consideration in this context. While I find that it is in the best interests of these children that I revoke the cancellation of Mr KUOT’s visa, this is tempered by my concerns regarding Mr KUOT’s previous violence in the presence of his children and his previous non-compliance with the conditions of an Apprehended Domestic Violence Order, as well as an absence of supporting material that indicates the current status of his relationship with his children such as any telephone or face-to-face contact or any supporting submissions from their mothers. As noted above, whilst this cannot be counted against Mr KUOT, I am unable to attribute strong weight to this matter in his favour without more information from those who may be affected by the decision. However, I accept that Mr KUOT’s removal from Australia would prevent his children from having a direct and meaningful relationship with their father in the future, should they wish to do so. Consequently, I have attributed this consideration moderate weight in favour of a decision to revoke the cancellation of Mr KUOT’s visa.

(Original emphasis retained in bold and underline. Further emphasis added in bold.)

83    As noted above, the applicant’s submission that the omission of Ms K’s evidence from the material before the Second Tribunal is a consequence of the Minister’s failure to comply with s 501G was not pressed. That section requires the Minister to provide relevant documents to the applicant, not the Tribunal.

84    Second, the Minister complied with its other statutory obligations to provide the Second Tribunal with certain documents. Section 500(6F) of the Migration Act provides as follows:

(6F)    If:

(a)    an application is made to the ART for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and

(b)    the decision relates to a person in the migration zone;

then:

(c)    the Minister must lodge with the ART, within 14 days after the day on which the Minister was notified that the application had been made, a copy of every document that: 

(i)    is in the Minister’s possession or under the Minister’s control; and

(ii)    was relevant to the making of the decision; and

(iii)    contains non-disclosable information; and

(d)    the ART may have regard to that non-disclosable information for the purpose of reviewing the decision, but must not disclose that non-disclosable information to the person making the application.

85    In accordance with this obligation, the Minister filed and served the Second Non-revocation Decision, the attachments to that Decision and the applicant’s application for review by the Tribunal of the Second Non-revocation Decision, commonly referred to as the “G Documents”, on 17 June 2025. The G Documents comprised some, but not all, of the material that was before the First Tribunal. The applicant was not entitled to assume that all of the evidence that was before the First Tribunal would form part of these documents, particularly in circumstances where he was provided with the G Documents.

86    During a case management hearing on 11 June 2025, the Second Tribunal made directions for the applicant to provide any witness statements or other evidence on which he intended to rely by 23 June 2025, and any evidence in reply by 11 July 2025. On 9 July 2025, these directions were varied so as to provide for the applicant’s reply to be provided by 14 July 2025 (this being two business days before the first day of the 2025 hearing).

87    Despite the directions that were made, the applicant did not file any evidence. As is apparent from the oral submissions he made to the Second Tribunal, the applicant in effect said he did not feel he had to call that evidence again. Although he hoped that material was before the Second Tribunal, he had been given the opportunity to put it forward. There is no suggestion that the applicant was not aware that he had this opportunity. Rather, the applicant made a choice not to do so. Nothing was said by the Second Tribunal or the Minister to indicate that the applicant could proceed on the basis that the Second Tribunal had the relevant material. The Second Tribunal did, however, have the 2023 Tribunal Decision, which, as noted above, summarised the relevant evidence that was before it.

88    Third, the Minister had filed and served on the applicant a Statement of Facts Issues and Contentions (SFIC), along with a tender bundle, on 8 July 2025. The SFIC identified the absence of evidence of the applicant’s current relationship with his children as follows:

58.    Although there is minimal evidence of the applicant’s current relationship with his children, the Minister acknowledges that the children may experience some adverse emotional impacts of being separated from their father. However, the weight given to this consideration should be tempered in circumstances where:

(a)    the children’s mothers fulfil the parental role;

(b)    there have been extensive periods of absence while the applicant has been in prison and detention;

(c)    his ability to play a positive role in his children’s lives has been hampered by his persistent violence and drug use; and (d) the likelihood of him playing a significant parental role in their lives is guarded in light of his risk of reoffending.

59.    Overall, to the extent this consideration weighs in the applicant’s favour, it is outweighed by the countervailing primary considerations.

89    An amended version of the SFIC was filed and served on 11 July 2025, along with a supplementary tender bundle.

90    Fourth, the applicant was served the hearing book via email on 14 July 2025, and via post on 15 July 2025. It comprised the documents already filed and served by the Minister, as well as two emails from the applicant which the Second Tribunal treated as submissions. It is unclear whether the applicant had a copy of the entirety of the hearing book prior to the hearing before the Second Tribunal on 17-18 July 2025. However, there was nothing new in the hearing book that had not already been previously filed and served on the applicant.

91    Fifth, on 14 July 2025, the final day that the applicant could file and serve evidence, the Second Tribunal emailed the parties “a pre-hearing document which outline[d] the material that ha[d] been provided for consideration by both parties…and the details of witnesses and appearances”.

92    Having regard to the above, I am not satisfied that the applicant was denied procedural fairness. That conclusion is not altered by the fact that the applicant was self-represented or suffering from an injury. He gave evidence in response to questions from the Second Tribunal and was cross-examined.

93    Nor was the Tribunal required to provide a running commentary as to its prospective reasoning process: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; 266 FCR 105 at [38] (Besanko, Gleeson and Burley JJ) (approved, for example, in National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 at [68] (Flick, Mortimer and Banks-Smith JJ)); DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229; 289 FCR 346 at [32] (Bromwich, Anastassiou and Anderson JJ). Accordingly, it was not obliged to advise the applicant of any finding adverse to him relating to the best interests of his children during the course of the hearing. While the applicant may not have received “every” opportunity to present his case, he received a “reasonable opportunity” to do so.

94    It follows that Ground 3 has not been established and should be dismissed.

7.    DISPOSITION

95    For the foregoing reasons, Ground 1 is made out. The 2025 Tribunal Decision is to be quashed. The matter should be remitted to the Tribunal for determination according to law.

Associate:

Dated:    26 June 2026