Federal Court of Australia

BQNZ v Minister for Immigration and Citizenship [2026] FCA 857

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNETT J:

Background

1    The applicant is a citizen of Iraq who arrived in Australia in August 1999 and was granted a Class AZ Subclass 866 protection visa later that year.

2    The applicant has a very serious criminal history involving convictions for violent offending against women and children between 2002 and 2017.

3    On 23 August 2018, a delegate of the first respondent (the Minister) cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that the delegate was satisfied the applicant did not pass the “character test” on specified grounds and he was serving a full-time custodial sentence.

4    Where a visa is cancelled under s 501(3A), s 501CA of the Act requires the Minister to invite representations from the holder about revoking the cancellation of his visa, and should representations be made, to consider whether the cancellation should be revoked. On 4 September 2018 the applicant made such representations. On 26 January 2021, a delegate of the Minister decided not to revoke the cancellation. On 3 February 2021, the applicant applied for review of that decision in the (then) Administrative Appeals Tribunal (the Tribunal). On 27 April 2021, the Tribunal affirmed the Minister’s decision (the Tribunal decision). It published reasons on 10 May 2021.

5    The applicant currently resides in the community as a holder of a Bridging R (Subclass 070) (Removal Pending) visa (BVR).

6    This Court has a limited jurisdiction in relation to migration decisions (see s 476A of the Act). Section 477A of the Act imposes a time limit on applications to the Court for review of a migration decision. It 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.

7    The applicant filed an application for an extension of time under s 477A(2) on 30 January 2026, approximately four years and 9 months after the Tribunal decision of 27 April 2021. His draft originating application would seek the following orders:

1.    The decision of the Administrative Appeals Tribunal dated 10 May 2021 be set aside.

2.    The matter be remitted to the Administrative Review Tribunal for redetermination in accordance with law.

3.    The first respondent pay the applicant’s costs of the application as agreed or assessed.

8    The applicant relies on the following affidavits in support of his application for an extension of time:

(a)    the applicant’s own affidavit filed on 30 January 2026 referring to his medical conditions and reasons for delay following the Tribunal decision;

(b)    an affidavit of his solicitor, Ms Zoe Anastassiades of Legal Aid New South Wales (Legal Aid), also filed on 30 January 2026, outlining the applicant’s contact with Legal Aid and annexing the Tribunal decision and a draft originating application for review of the Tribunal’s decision;

(c)    a further affidavit of Ms Anastassiades filed on 1 April 2026 which annexed copies of the transcripts of the Tribunal hearing and an amended draft originating application for review of the Tribunal decision (draft AOA); and

(d)    an additional affidavit of Ms Anastassiades accepted for filing at the hearing on 14 May 2026 concerning the applicant’s admission to, and surgery in, hospital in April 2026.

9    The first and second of these affidavits are directly relevant to the question whether time should be extended. The third is relevant to the substance of the proposed application for judicial review (which, as discussed below, is also relevant to whether time should be extended). The fourth relates to treatment that the applicant has apparently received since filing his application. It was sought to be filed, as I understand it, to inform the assessment of the applicant’s credibility in the event that he was cross-examined on his earlier affidavit.

The applicant’s reasons for delay

10    The applicant deposes that he suffers from “complex Post-Traumatic Stress Disorder, schizophrenia, depression, among other mental and physical medical conditions”. He says that in September 2020 he was involuntarily transferred from Melbourne Immigration Transit Accommodation to Yongah Hill Immigration Detention Centre (which is in Western Australia) and that during this process a sedative was administered to him which made him “very mentally unwell”. He describes experiencing flashbacks and describes his current living conditions and physical health. He says that he sees his General Practitioner “every couple of weeks” and sees Dr Andrew Singer “for mental health and pain management”. He lists a number of medications that he is currently taking. Although there is no direct evidence before me to explain what these medications are, some of them appear to be for mental health conditions, high blood pressure, diabetes and chronic back pain.

11    The applicant says that at the time of the Tribunal decision he “had no mental understanding of what was happening with [his] visa or what it really meant” and “was not in a position to make an appeal”. He says that he does not remember receiving the decision or having knowledge about his appeal rights. He says that the first time he can remember being told he could appeal from the Tribunal decision was advice that he received from Legal Aid in late 2025.

12    Counsel for the Minister proposed to cross-examine the applicant, but revised this plan in the light of the material annexed to Ms Anastassiades’s affidavit of 13 May 2026. That material included a discharge summary from Westmead Hospital dated 24 April 2026 which indicated that he had been treated for a brain bleed and had discharged himself against medical advice on 8 April 2026. Counsel was (properly) concerned that the stress of going into the witness box could be dangerous for the applicant. Counsel for the applicant took the position (as I understood it) that either his client should be cross-examined or his evidence wholly accepted. Neither party sought an adjournment of the hearing.

13    Cross-examination of witnesses does not usually take place on interlocutory applications, although it would likely have been appropriate here on the basis that there is not an agreed position as to the extent of the applicant’s health problems and their effect on him. I determined that, in the circumstances outlined in the previous paragraph, the application should proceed without cross-examination of the applicant. That does not automatically mean that his affidavit evidence must be wholly accepted: evidence that has not been directly challenged may nevertheless be rejected if, for example, it is contradicted by facts otherwise established or “the particular circumstances point to its rejection”: Ashby v Slipper [2014] FCAFC 15; 219 FCR 322 at [77] (Mansfield and Gilmour JJ).

14    Here, the applicant’s claim to be suffering from specific mental illnesses cannot itself be taken at face value as a diagnosis and is not adequately supported by medical evidence. The material annexed in support of this claim consisted of:

(a)    a report from Dr Chaudhary, a psychiatrist, dated 18 October 2016, which diagnosed post-traumatic stress disorder (PTSD) and schizophrenia;

(b)    records of the applicant’s appointments with health professionals working for the International Health and Medical Service (IHMS) during his time in immigration detention in 2020 and 2021, which are consistent with him having symptoms of PTSD (as well as a range of physical ailments) but do not seem to support a conclusion that he suffered other mental illnesses at that time; and

(c)    a photograph of a document dated 8 November 2025 which appears to be a referral letter from the applicant’s GP (Dr Moghadas) to Dr Singer and which refers to a number of conditions under the heading “Past History”. Dr Moghadas does not indicate the sources of that history but notes that she “does not have access to his file”.

15    This is an unsatisfactory basis for any detailed findings about the applicant’s state of mental health or capacity to make decisions about applying for review of the Tribunal decision during the period from the date of that decision (April 2021) to the filing of his application in this Court (January 2026). As a practical matter it seems unlikely that cross-examination of the applicant would have shed much, if any, further light on this issue. It is unfortunate that his solicitors have sought to establish his state of health by way of an affidavit from the applicant himself (who, if his account is even partly true, is for that very reason unlikely to be a reliable historian) rather than a report from one of his treating doctors. The absence of any recent medical evidence concerning the applicant’s mental health makes it difficult to accept that he suffers particular mental health conditions or any specific degree of disability.

16    I should also note that counsel for the Minister took me to other IHMS records from the applicant’s time in immigration detention, which seem to record him thinking and communicating clearly. For example, notes of a GP consultation on 21 May 2021 (11 days after the Tribunal reasons were provided) recorded the applicant as being “fully oriented, calm and appropriate” and able to “give a coherent account”, before expressing concern about the possible interaction of the medications he was taking. Three months later, in August 2021, what was described as a “Keepsafe review” contained no indication that the applicant was disoriented or unable to understand his situation. That entry in the notes includes the following:

On presentation, client was settled, engaging well, cooperative. Good mood.

Bright and reactive affect, congruent to mood. Nil perceptual disturbance. Good judgment.

Client reports he self-harmed as a protest because of misunderstanding between him and an officer.

…

Client denies TOSH [thoughts of self-harm] or SI [suicidal ideation] and guarantees his safety.

Says his children make him happy and [he] talks to them everyday. Says there [is] no reason for him to think of suicide.

17    Doing the best that I can with this evidence (and noting that the applicant was not confronted with any of the material that seemed to undermine his testimony), I accept that the applicant has had mental health issues for a long time and would have had difficulty embarking on the process of seeking judicial review of the Tribunal decision without assistance. However, I do not consider the evidence to be sufficient to establish that commencing judicial review proceedings within (or soon after) the time allowed by s 477A(1) was beyond his capacity, noting that at the time of the Tribunal decision and for some time thereafter the applicant was in immigration detention and therefore had access to some level of medical and psychological support.

18    Additionally, the applicant has had some assistance.

(a)    The Tribunal’s reasons record that he was represented at the hearing in April 2021 by an experienced solicitor, Ms Battisson of Human Rights for All. Ms Battisson had prepared his review application and was also his nominated recipient at the time of the non-revocation decision in January 2021. It can therefore be assumed that the Tribunal decision and reasons were provided to Ms Battisson; and in the absence of specific evidence I consider it unlikely that she would not have contacted her client, at least to tell him about the consequences of the decision and the steps that he could take in response to it. The applicant’s current solicitors do not seem to have made any inquiries as to the extent of any advice that he was given at that time. I do not consider the evidence sufficient to establish that the applicant did not become aware of the Tribunal decision at the time it was handed down or that he had nobody to explain it to him.

(b)    Ms Anastassiades deposes, based on records maintained by Legal Aid, that the applicant was referred to Legal Aid by the Refugee Advice and Casework Service (RACS) on 30 June 2023 for advice on a prospective judicial review application in relation to the Tribunal decision. RACS sent a follow-up email on 26 July 2023. According to her evidence, Legal Aid’s records indicate that an unsuccessful attempt was made to contact the applicant by telephone on 4 July 2023. The initial email from RACS indicated that it did not have copies of the applicant’s documents relating to the Tribunal proceeding, which suggests that RACS had not been able to give him much if any advice about it. However, the fact that he was in contact with RACS in mid-2023 (and was prepared to have his case referred to Legal Aid) is fairly strong evidence that he was being assisted by RACS at that time and there was some discussion about the Tribunal decision. By mid-2023, an application would already have been significantly out of time, and any caseworker at RACS would be likely to have stressed the need to act promptly.

19    The explanation that emerges from the applicant’s evidence is therefore insufficient to account for the delay of nearly five years between the decision of the Tribunal and his application for an extension of time.

The relevance of prospects of success

20    In DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; 278 FCR 475 (DHX17), a Full Court (Collier, Rangiah and Derrington JJ) considered the type of evaluation of a proposed application’s prospects of success that was appropriate for the purpose of considering an application for an extension of time under s 477(2) of the Act (which is in similar terms to s 477A(2)). There, in a case where the applicants were approximately four months out of time, a judge of the (then) Federal Circuit Court (the Circuit Court) engaged in a detailed analysis of the merits of the proposed grounds of review before concluding that the application “would have been dismissed” if he were considering it on its merits and therefore dismissing the extension of time application. On an application for judicial review of the Circuit Court decision, the Full Court held that this constituted the application of a wrong test, and therefore jurisdictional error. Their Honours said at [68]:

…the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review.

21    This statement was, however, expressly disapproved in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (Tu’uta Katoa). Tu’uta Katoa also involved an application for judicial review, this time of a decision of a judge of this Court (Nicholas J) under s 477A(2), where the issue was whether the judge had fallen into jurisdictional error. The plurality (Kiefel CJ, Gageler, Keane and Gleeson JJ) said at [18]-[19]:

However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

It follows that the Full Court in DHX17 was wrong to say that “the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review”. As the merits of a proposed application are a permissible consideration, it is within the Federal Court’s jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant’s case is likely to commit jurisdictional error, was mistaken.

(Footnotes omitted.)

22    In the decision that was under review in Tu’uta Katoa (Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1000), Nicholas J encapsulated the submission of the Minister as “the applicant’s extension of time should be dismissed because the applicant’s proposed grounds of review lack sufficient merit to warrant the grant of an extension of time” (at [7], emphasis added). His Honour expressed his conclusion at [8] as follows.

For the reasons that follow, I am not persuaded that ground 2 has any merit. In the circumstances, I propose to dismiss the applicant's application for an extension of time.

(Emphasis added.)

23    His Honour’s reasons in their entirety ran to 33 paragraphs. His consideration of the substantive issues led to the confident conclusion, referred to above, that the relevant ground did not have “any” merit. This, at least on my reading, was not inconsistent with anything in DHX17. His Honour (as the majority in Tu’uta Katoa observed at [20]) did not proceed on the basis that an extension would only be granted if he were persuaded that the proposed ground of review would succeed.

24    Part of the explanation for the observations in Tu’uta Katoa set out above appears to be that, in that case as in DHX17, the issue was whether the judge had fallen into jurisdictional error (rather than whether there had been an error in the House v The King (1936) 55 CLR 499 sense that would warrant re-exercise of the discretion by a court on appeal). The ultimate question on an application for an extension of time under s 477A(2) is whether it is “necessary in the interests of the administration of justice” for the extension to be granted. As explained in Tu’uta Katoa at [19], the subsection entrusts to this Court “the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed”. The area of decisional freedom is therefore large, and errors going to jurisdiction will therefore (one hopes) be rare. Hence, the Full Court in DHX17 erred in treating the error that it had discerned as one going to jurisdiction. However, a judge exercising the power in s 477A(2) should have regard not only to the limits of the jurisdiction but to the correct application of principle within it.

25    Another aspect of DHX17 that appears erroneous in the light of Tu’uta Katoa is the suggestion that the merits of the substantive proceeding should never receive more than “impressionistic” consideration in determining an application for an extension of time. Although it is common for an extension of time application to be listed for hearing at the same time as the substantive proceeding, the question as to where the interests of the administration of justice lie needs to be addressed at an interlocutory stage; that is, at a point anterior to the hearing of the substantive matter. If the case is heard and considered as if on a final basis and the judge comes to the view that the applicant should ultimately not succeed, that conclusion may not be sufficient in itself to provide a negative answer the anterior question whether it is necessary in the interests of justice for time to be extended. Among other things, answering that question negatively and refusing to extend time results in an interlocutory judgment that cannot be appealed from without leave.

26    Other circumstances, however, raise the issue of prospects of success in different ways. One such circumstance is where the applicant’s delay is “lengthy and unexplained”. In such a case, as was observed in Tu’uta Katoa at [18], the applicant will usually need something more than an arguable case to persuade the court that the interests of justice require an extension of time. Their Honours’ formulation was “strong or even ‘exceptional’”. Their Honours referred in this connection to Vella v Minister for Immigration and Border Protection [2015] HCA 42; 90 ALJR 89 at [3], where Gageler J recorded a concession by senior counsel for the plaintiff that, “given the length of the extension sought, I would only reach that conclusion were I to be persuaded that Mr Vella’s case is ‘exceptional’”. His Honour there referred to two decisions of McHugh J: Re Commonwealth; Ex parte Marks [2000] HCA 67; 75 ALJR 470 at [13] (Marks) and Gallo v Dawson (1990) 64 ALJR 458 at 459 (Gallo).

27    In Gallo, McHugh J said:

The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted.

…

I doubt that I would have considered the applicant’s explanation for the delay to be a sufficient reason for enlarging the time for lodging her appeal from the 21 days required by the Rules to the more than 16 months which would be required if this application were to succeed, even if I had thought that the applicant had real prospects of succeeding in her proposed appeal. A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved.

(Citations omitted.)

28    In Marks at [13], citing what he had said in Gallo, McHugh J said:

A “case would need to be exceptional” before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration.

(Footnotes omitted.)

29    In both of these cases, McHugh J came to the view that the party seeking the extension did not have even an arguable case. In Vella, one of the proposed grounds was conceded to be “ambitious” and both could have been pursued (but were not) in earlier proceedings (at [14]-[15]). The extension was therefore refused. What an “exceptional” case looks like for these purposes has therefore not, so far as I am aware, been explored in the decided cases.

30    In my view, in order to justify an extension of time where the delay in commencing proceedings is “lengthy and unexplained”, more is needed than a strong case on the merits. A party who has a strong case, but sits on their hands for many months for no good reason, should normally not be entitled to expect an extension of time. The shutting out of claims (even strong claims) in such circumstances is exactly what provisions such as s 477A are designed to achieve. An “exceptional” case in this context should therefore be understood to involve something more than substantive merit: for example, particularly egregious conduct by the respondent, or particularly serious consequences for the applicant if the claim cannot be pursued.

31    In the present case, counsel for the applicant appropriately accepted that the delay was “very lengthy”. That delay is not completely unexplained, in that I have accepted that the applicant has faced difficulties arising from his mental health, but the explanation is far from sufficient to justify an extension of the length required.

32    The Minister properly did not claim to be prejudiced by the delay. However, quite apart from individual prejudice, s 477A(2) embodies an important value. The administration of the Act in the public interest ought to be able to proceed on the footing that, once the time for seeking review of a decision has passed, the decision will not be disturbed without good reason.

33    In order to grant an extension of time in these circumstances, therefore, I would need to be persuaded that:

(a)    the applicant’s substantive case is clearly very strong, to the extent that an obvious injustice would be perpetuated if the Tribunal decision were not set aside; and/or

(b)    the consequences for the applicant are extraordinary in their seriousness.

Consequences for the applicant

34    As noted earlier, it is common ground that the applicant currently resides in the community on a BVR. A consequence of him having that status is that, if he is issued a visa permitting him to enter and remain in Nauru, his visa will cease to have effect under s 76AAA of the Act and he will become liable to be removed to Nauru as soon as reasonably practicable. Pending such removal, he would again be taken into immigration detention. On the other hand, if the applicant had a substantive judicial review application on foot, it is likely that he would be able to obtain an interlocutory injunction to prevent his removal pending the resolution of that proceeding.

35    Being detained and then removed, to a country whose health services are notoriously inferior to those available in Australia, would no doubt be an extremely serious consequence for the applicant. While I was not taken to any evidence going to the likelihood of a Nauruan visa being issued to the applicant (including whether the applicant’s health issues have an impact on that likelihood) or whether he would be assessed as being fit to travel, it must be treated as something that is at least a possibility in his present circumstances.

36    However, removal from Australia as soon as reasonably practicable is what s 198 of the Act demands, in the case of a non-citizen who no longer has a visa, at least ordinarily without regard to the human consequences. The exceptions are very limited: where there is an extant finding that Australia owes protection obligations to the non-citizen in respect of the proposed destination country (s 197C(3)) or where removal is restrained by an injunction in the context of pending proceedings (Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; 99 ALJR 486 at [31]-[47] (Gageler CJ, Gordon, Gleeson and Jagot JJ), [77] (Steward J), [125]-[126] (Beech-Jones J)). Removal may be “practicable” (and therefore required) within the meaning of s 198 even if there is a real risk of the non-citizen being killed, tortured or persecuted in the proposed destination country: what may happen after the process of removal is complete does not have a bearing on its practicability (see eg NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292; 133 FCR 506 at [52]-[55] (Wilcox, Lindgren and Bennett JJ) and TCXM v Minister for Immigration and Citizenship [2026] HCA 13 at [38]-[54] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) (TCXM)). Accordingly, while the potentially devastating consequences for the applicant of being removed to Nauru naturally give rise to sympathy for him, these are consequences of the proper administration of the Act (cf WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 1332 at [86] (French J) (approved in TCXM at [46]), holding that the duty to remove a non-citizen was not conditioned on the absence of a medical condition that would deteriorate upon the person’s removal). It would not be appropriate to treat these potential consequences as determinative of the “interests of the administration of justice” for the purposes of s 477A(2).

The (proposed) substantive grounds of review

37    It was not in dispute before the Tribunal that the applicant failed the “character test” under s 501(6) of the Act. The only issue for determination was whether there was another reason to revoke the cancellation of his visa under s 501CA(4)(b)(ii), having regard to the matters set out in Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Ministerial Direction). Before considering the proposed grounds of review, it is necessary to give a brief outline of the Tribunal’s reasons (R).

38    The Tribunal first gave a brief summary of the procedural background (R [1]-[4]) and described the legislative framework (R [5]-[17]), in the course of which it noted that there was no doubt that the applicant did not pass the “character test” (R [10]) and gave a detailed summary of the relevant provisions of the Ministerial Direction.

39    The Tribunal set out the applicant’s “Background and offending” in detail at R [18]-[95]. It then turned to the “primary” and “other” considerations referred to in the Ministerial Direction and assessed them as follows.

(a)    As to primary consideration 1 – protection of the Australian community (R [96]-[126]), the Tribunal discussed a number of offences committed by the applicant and concluded that his offending, in its totality, was “very serious” (R [108]). Having considered the nature of the harm that might result if the applicant offended again and the likelihood of further offending, the Tribunal concluded at R [125] that it was “very likely that the Applicant will commit further offences of the kind that he has committed”. The conclusion at R [126] was that this consideration “weighs heavily against revocation of the cancellation”.

(b)    As to primary consideration 2 – family violence (R [127]-[129]), the Tribunal concluded that some of the applicant’s offending came within the meaning of “family violence” and this also “weighs heavily against revocation of the cancellation”.

(c)    As to primary consideration 3 – the best interests of minor children in Australia (R [130]-[149]), the Tribunal noted that the applicant was in a relationship with Ms J and that she had three children aged six, eight and nine (R [132]-[133]). Ms J gave what seems to have been rather confusing evidence, which the Tribunal addressed at R [133]-[145]. She said that she intended to continue her relationship with the applicant if he was allowed to return to the community but also that she and her children would be in danger if that happened (apparently from members of her family). She also said that if the applicant were removed to Iraq she would go with him and take her children, even though she understood that there were not proper facilities there to assist her children (who were autistic). The Tribunal was clearly very sceptical as to whether anything that Ms J said could be accepted. It came to the view at R [145] that “if it comes to the crunch” Ms J would remain in Australia and her children would be without the physical presence of the applicant. However, as things stood he had only had very limited contact with the children and was not their father (R [145]-[146]). Further, his history of broken relationships and offending against his partners, and the prospect that that would continue, led to a “significant risk” that his presence could result in harm to the children (R [147]-[148]). The Tribunal therefore concluded that the interests of the children “weigh to a limited extent in favour of non-revocation” (R [149]).

(d)    As to primary consideration 4 – the expectations of the Australian community (R [150]-[157]), the Tribunal had regard to the “expectation” set out in the Ministerial Direction that non-citizens should obey Australian laws while in Australia and that those who engage in certain kinds of serious offending should not be granted or continue to hold a visa. The Tribunal concluded at R [157] that the community would expect that the applicant should not hold a visa. Considering the factors that it had discussed, the Tribunal concluded that there was “very little” in favour of the applicant and this consideration “weighs very heavily in favour of non-revocation”.

(e)    The first of the “other considerations” was international non-refoulement obligations (R [159]-[233]). The applicant contended that he would face harm if removed to Iraq and that he would not voluntarily return there. He put forward seven reasons why Australia owed him non-refoulement obligations (R [163]). The Tribunal addressed these claims and concluded at R [227] that it was not satisfied the applicant met relevant criteria in s 36 of the Act or that removing the applicant to Iraq would breach Australia’s non-refoulement obligations.

(f)    The Tribunal then went on to consider the practical consequences of a non-revocation decision by reference to the likelihood of the applicant being able to be removed to Iraq. It accepted at [229] that, given the applicant’s opposition to returning voluntarily, it would not be reasonably practicable to return him to Iraq unless either he or the Iraqi government changed their position. Currently, therefore, the consequence of non-revocation was that the applicant would remain in detention indefinitely (R [231]) (noting that the decision was made before the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137). On this basis, the first of the other considerations “weighs moderately in favour of revocation” (R [233]).

(g)    The second “other consideration” was “extent of impediments if removed” (R [234]-[239]). The Tribunal considered the circumstances the applicant would face if he were removed to Iraq, including by reference to the matters it had canvassed in connection with non-refoulement obligations. It concluded that he would face “significant difficulty re-establishing himself” and that this consideration “weighs heavily in favour of revocation” (R [239]).

(h)    The third “other consideration” was “impact on victims” (R [240]-[241]). This consideration was treated as neutral, on the basis that the Tribunal was not satisfied that the applicant had committed any offence against Ms J and there was no evidence before the Tribunal of the potential impact on the other victims of his offending.

(i)    The final “other consideration” was “links to the Australian community” (R [242]-[250]). The Tribunal considered the applicant’s history of employment and voluntary work and his relationship with Ms J. It concluded at R [250] that “limited weight in favour of revocation” should be allocated to this factor.

(j)    The Tribunal then came to its conclusion as follows (R [251]-[253]).

I am now required to weigh all of the Considerations in accordance with the Direction.

In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:

•    Primary Consideration 1 weighs heavily in favour of non-revocation;

•    Primary Consideration 2 weighs heavily in favour of non-revocation;

•    Primary Consideration 3 weighs to a limited extent in favour of non-revocation;

•    Primary Consideration 4 weighs very heavily in favour of non-revocation; and

•    To the extent that Other Considerations (a), (b) and (d) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh the Primary Considerations.

Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

40    The six grounds of review contained in the amended draft originating application are as follows.

1.    The Tribunal’s decision is affected by jurisdictional error because it engaged in irrational or illogical reasoning in finding the Applicant’s substance abuse or mental health did not contribute to his offending.

2.    Alternatively, to Ground 1, the Tribunal failed to engage with a clearly articulated submission by the Applicant that he had a possible substance use disorder and in doing so denied the Applicant procedural fairness.

3.    The Tribunal’s decision is affected by jurisdictional error because it misunderstood the facts and impermissibly went behind the findings of the sentencing judge.

4.    The Tribunal’s decision is affected by jurisdictional error because it misunderstood the law by failing to balance the relevant considerations to decide whether or not to exercise the power under s 501CA(4) of the Migration Act.

5.    The Tribunal’s decision is affected by jurisdictional error because it misapprehended the statutory task under s 501CA(4) and applied the wrong test.

6.    Tribunal’s decision is affected by jurisdictional error due to reasoning and findings that were irrational and/or illogical.

(Particulars omitted.)

41    Ground 3 was not pressed.

Ground 1

42    Ground 1 alleges irrational or illogical reasoning in five findings that the Tribunal expressed in its reasons concerning the applicant’s substance abuse or mental health.

43    First, in the course of its exposition of the applicant’s “Background and offending”, at R [66] the Tribunal summarised the transcript of a sentencing hearing in which there was some discussion of methamphetamine use by the applicant. The Tribunal then said at R [67]:

There is no other evidence to the effect that the substance abuse contributed to the Applicant’s offending or was prominent in his life. I do not find it necessary to make a finding on this issue.

44    Second, in assessing the likelihood of the applicant re-offending for the purpose of primary consideration 1 (the protection of the community), the Tribunal said at R [122]:

There is not any reliable evidence that the Applicant’s mental health contributed to his offending, or that the Applicant would responsibly manage his mental health to reduce his risk of re-offending if he were allowed to return to the wider Australian community.

45    Third, in its discussion of potential non-refoulement obligations, the Tribunal addressed a claim that the applicant would suffer societal discrimination in Iraq as a result of being a member of a “particular social group” described as people with psychological disabilities in Iraq without access to family or social support networks” (R [189]). The first aspect of that claim was the applicant’s mental health. At R [190] the Tribunal said:

The Applicant has been diagnosed with complex post-traumatic stress disorder (“PTSD”), schizophrenia and possible substance use disorder, and adjustment disorder. While there is some evidence of drug use, there is insufficient evidence to satisfy me that the Applicant ever had, or has, a substance use disorder and he does not make any such claim. I accept that he has PTSD and has suffered symptoms of adjustment disorder (being by its nature a temporary condition). The evidence of schizophrenia is questionable for the reasons that follow.

46    Fourth, later in the same discussion, the Tribunal concluded at R [198] that it was not satisfied that the applicant suffered from schizophrenia or a psychotic illness or that he needed anti-psychotic medication.

47    Fifth, again as part of the same discussion, the Tribunal said at R [202]:

Historically, the Applicant has sought psychological intervention in times of severe symptoms, although sometimes he has not. Prior to 2011, there were times when he did not consider his symptoms were serious enough to seek help and he was embarrassed to seek help. He has also ceased treatment for extended periods. I am not satisfied that he would engage in ongoing or long term mental health treatment in future. Nor am I satisfied that he requires it. Rather, I find that sometimes his mental health deteriorates to such an extent that he seeks intervention and he engages in treatment for a period afterwards. I find that this is what he would do in future, all else being equal. I note that when he was under cross examination, which can be a confronting and harrowing ordeal for anyone, he indicated he was finding it very difficult and he took medication. I accept that the Applicant’s PTSD renders him less able to cope with stressful situations.

48    These findings are said to embody irrational or illogical reasoning, on the basis that:

(a)    at R [67], [122] and [190] the Tribunal paid inadequate regard to the 2016 report of Professor Chaudhary referred to above (which was in the material before it) and sentencing remarks of a magistrate in 2017 which referred to a Justice Health report (also in the material before the Tribunal) and at R [198], in relation to schizophrenia, seemed to prefer the conclusions in a review of medical reports by Dr Jillian Spencer, without explaining that preference; and

(b)    the conclusion at R [202] that the applicant did not require ongoing or long-term mental health treatment was not set out in any diagnostic material before the Tribunal.

49    To the extent that these paragraphs express findings, they were findings which the Tribunal made after considering the material before it. Weighing that material, including competing medical opinions reflected in the documents, was part of the Tribunal’s role. None of the findings complained about can be said to lack any foundation in probative material.

Ground 2

50    Ground 2 alleges a failure by the Tribunal to respond to a “substantial, clearly articulated argument relying on established facts”. To the extent that this ground is based on the obligation of a decision-maker under s 501CA(4) to make a decision by reference to the “representations” made by the visa holder under s 501CA(3) (see eg Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [22] (Kiefel CJ, Keane, Gordon and Steward JJ)), it faces the problem that no reference is made to the representations that the applicant made to the Minister seeking revocation of the cancellation of his visa. Instead, reliance is placed on the applicant’s witness statement and Statement of Facts, Issues and Contentions (SFIC) before the Tribunal. However, it can be accepted that the Tribunal’s obligations of procedural fairness extend to taking account of “cogent evidence providing substantial support to the applicant’s case” and any “substantial and clearly articulated argument advanced by the applicant in support of that case” (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [13] (Bell, Gageler and Keane JJ), [105] (Nettle and Gordon JJ)).

51    The argument with which it is alleged that the Tribunal failed to grapple is to the effect that the applicant may have suffered from substance abuse disorder. It was put in the applicant’s SFIC as follows.

The Applicant has serious mental health issues as a result of severe torture he suffered in Iraq…These events have resulted in diagnoses of complex PTSD (involving hearing voices as a quasi-psychotic symptom of PTSD), schizophrenia (involving auditory hallucinations and delusional thoughts), periodic suicidal ideation, possible substance use disorder and adjustment disorder.

(Emphasis added.)

52    This text appeared in a sub-paragraph of [34] of the SFIC, where it was suggested to be a factor which mitigated the seriousness of the applicant’s offending for the purposes of the first “primary consideration” (protection of the Australian community). There was also a reference to “possible substance use disorder” at [64] of the SFIC as one of the “multiple health issues” relevant to the extent of the impediments the applicant would face if removed to Iraq.

53    The argument, reflecting the medical evidence that underpinned it, did not rise any higher than a possible substance use disorder. It is not clear what the Tribunal was supposed to do with a suggestion of a mere possibility. Assuming the Tribunal agreed with the submission that it was possible the applicant suffered a substance use disorder, such a conclusion might have informed a decision about the applicant’s medical treatment. However, it was of no obvious use as an integer for findings about matters such as the seriousness of his offending or the situation he would face if removed to Iraq.

54    It should also be noted that, while the Tribunal was not a court, it operated on an adversarial model. Its procedures (set out in Divisions 4 and 5 of Part IV of the Administrative Appeals Tribunal Act 1975 (Cth)) were based on the presentation of evidence by parties at hearings and did not include any provision for the Tribunal to make its own investigations prompted by lines of inquiry that the parties might suggest. If a party in a review wanted the Tribunal to make a particular finding, it was necessary for the party to articulate the finding and adduce some evidence to support it.

55    The Tribunal clearly dealt with the overall submission that the applicant had “serious mental health issues”. The proposition that, as an aspect of that, he had been diagnosed with “possible substance use disorder” was, in this context, not in itself a “substantial and clearly articulated argument” in support of his case.

56    The applicant also referred to R [190] (which is set out above), where the Tribunal said in relation to substance use disorder that the applicant “does not make any such claim”. However, earlier in the same paragraph, the Tribunal had referred to other conditions with which the applicant had been diagnosed and then observed that there was “insufficient evidence to satisfy me” that the applicant had ever had a substance use disorder. Clearly this latter observation was a response to the suggestion in the SFIC that the applicant might have suffered from such a condition. In context, therefore, the observation that the applicant “does not make any such claim” must be taken to convey an understanding that the applicant was not positively contending that he suffered from a substance use disorder. That understanding was correct.

Ground 4

57    Ground 4 alleges that the Tribunal failed to balance the relevant considerations to decide whether or not to exercise the power in s 501CA(4).

58    In support of this ground the applicant cites CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 (Colvin, Stewart and Jackson JJ) (CRNL). CRNL was also a s 501CA case where the Tribunal was bound by the Ministerial Direction and sought to comply with it. The Tribunal’s conclusions in that case are set out at [24]. Having come to the end of its discussion of the “other considerations” and indicated the weight it would give to them, the Tribunal continued as follows.

CONCLUSION

113.    I am now required to weigh all of the Considerations in accordance with the Direction:

(a)    Primary consideration 1: protection of the Australian community

For the reasons outlined above, I place considerable weight upon this consideration mitigating against revocation.

(b)    Primary consideration 2: family violence

I also place considerable weight upon this consideration weighing against revocation because of the nature of the family violence offences committed against both his current partner and at least one former partner, including breaching the conditions of FVOs.

(c)    Primary consideration 3: the best interests of minor children in Australia

I have found the revocation would be in the best interests of the Applicant’s children, and I place significant weight upon this consideration.

(d)    Primary consideration 4: the expectations of the Australian community

For the reasons outlined above I find this consideration weighs strongly against revocation especially bearing in mind the community’s attitude towards those who commit offences involving domestic violence.

114.    The Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

115.    Consequently, I do not exercise the discretion to revoke the cancellation of the Applicant’s visa.

59    At [36]-[37] of CRNL, their Honours described the task of the Tribunal as having two aspects: identifying and considering each of the “primary” and “other” considerations with reference to the factual findings it had made; and evaluating the different considerations in relation to each other in a balancing exercise in order to reach a conclusion. As to the second aspect, their Honours said at [37]-[38]:

It is apparent from the concluding paragraphs of the Tribunal’s reasons (quoted at [24] above) that having undertaken the first aspect of the task, the Tribunal proceeded merely to conclude that the Direction “therefore” favours the non-revocation of the cancellation. There was no express evaluation or balancing; the reasons given do not disclose any process of reasoning which led from the attachment of weight to each consideration, as part of the first aspect of the task, to the ultimate conclusion.

The primary judge rightly described the Tribunal’s reasons in this regard as perfunctory. They can also be described as formulaic. They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being “primary” considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was “another reason” to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.

60    Ground 4 is arguable, but in my view not sufficiently strong to warrant an extension of time in the circumstances. There are clearly some similarities between the Tribunal’s conclusions in the present case (set out at [39] and [58] above) and the reasoning that was found wanting in CRNL. However, one obvious problem in CRNL, not present here, was the Tribunal’s failure to mention the “other considerations” at all when purporting to weigh all of the relevant considerations together. The Tribunal in the present case, having noted that it was required to “weigh all of the considerations”, did bring all of the “primary” and “other” considerations together in R [252] and express a view as to their relative weight. Further, the shortly expressed conclusions at R [252]-[253] must be read in the context of the Tribunal’s exposition of the nature of the power (R [5]-[7]) and the requirements of the Ministerial Direction (R [11]-[17]) and its detailed discussion of the facts in relation to each of the relevant considerations. It should not be assumed that the Tribunal, having written all of those detailed discussions, put them out of its mind and simply tallied up the short-form conclusions it had reached (“very heavily”, “to some extent”, etc) in an arithmetic way. As Gleeson CJ observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [14] (albeit in relation to a different issue), expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.

Ground 5

61    Ground 5 is expressed to be in the alternative to ground 4 and attacks the same part of the Tribunal’s reasoning. The observations at R [252] and [253] that certain “other considerations” which weighed in favour of revocation “cannot, even when combined, outweigh the [p]rimary [c]onsiderations”, and that “[a]pplication of the Direction” therefore favoured non-revocation, are said to involve a misunderstanding of the requirements of the Ministerial Direction and therefore a jurisdictional error.

62    The Ministerial Direction provided, at [7(2)], that “[p]rimary considerations should generally be given greater weight than the other considerations”. In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; 74 AAR 545 at [23]-[28], Colvin J considered similar language in an earlier ministerial direction and held that, by treating an “other” consideration as “secondary irrespective of its character in the particular case”, the Tribunal had not conformed to the language of the direction (at [28]).

63    Ground 5 therefore also has substance. The question that arises is whether, in saying that the “other” considerations “cannot” outweigh the “primary” considerations, the Tribunal should be understood to be invoking (erroneously) a requirement in the Ministerial Direction or stating its conclusion about the relative weight of the considerations in the particular case. Resolving that question involves reading the Tribunal’s reasons as a whole and applying the principle that they should not be read with an eye keenly attuned to the perception of error (recently applied in Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36 at [16] (Gageler CJ, Edelman and Jagot JJ)).

Ground 6

64    Ground 6 also alleges illogical or irrational reasoning. It relies on what is said to be a contradiction between aspects of the Tribunal’s reasoning in respect of Ms J. These are, according to the applicant’s submissions:

(a)    acceptance that Ms J was prepared to move to Iraq with her children if the applicant’s visa was cancelled (R [144]);

(b)    a “very real risk” that she would prioritise her relationship with the applicant over the interests of her children (R [147]); and

(c)    the finding that, “if it comes to the crunch”, Ms J would choose to remain in Australia if the applicant were removed to Iraq (R [145]).

65    To understand this point, it is necessary to set out the relevant paragraphs in full (italicising the passages that I take to be relevant to this point).

144.    With respect to Ms J’s evidence, it is difficult to know what, if anything, to accept. The Applicant himself gave evidence that Ms J would lie to protect him. What does seem reasonably certain is that Ms J considers herself to be in a relationship with the Applicant, she wishes that relationship to continue, she has some questionable beliefs including her belief that it is better for her children to have access to the Applicant than specialised disability services, and she is apparently prepared to expose her children and the applicant to risk from her family or the dangers in Iraq for the sake of continuing her relationship with the Applicant.

145.    My impression is that, given the difference in living standards, security, education and support services between Australia and Iraq, if it comes to the crunch Ms J will choose to remain in Australia. Her children will therefore be without the physical presence of a person who had no physical contact with them until July 2019 and has had only limited telephone contact since then. While the Applicant and Ms J may consider the Applicant to be a father figure, he is not the children’s father and he has never lived with them. Even if I accept Ms J’s evidence that the Applicant has had a positive impact on her younger child and her children have a strong bond with him, there is no evidence that the visits ending in January 2020 adversely impacted the children. Nor is there any expert evidence about how a non-revocation decision is likely to impact them. Their views are not known.

...

147.    Historically, the Applicant’s relationships have not lasted more than a few years. Given his history of broken relationships and offending against current and former partners, and my assessment that he is likely to continue that behaviour, there is a significant risk that a relationship between him and Ms J will result in indirect harm to her children through witnessing their mother being abused or receiving a lower level of parenting from her because she is dealing with abuse. There is also a risk of sexual assault against the female child and any such risk is unacceptable. Relevant to this is, as her evidence indicated, the very real risk that Ms J will prioritise her relationship with the Applicant over the interests of her children. Any potential benefit the Applicant may bring to the children’s lives is limited to the duration of his relationship with Ms J which is uncertain, and is outweighed by the risk of harm he would pose to them.

(Emphasis added.)

66    There is, in my view, no irrationality in this reasoning.

(a)    At R [144] the Tribunal expresses doubts about the veracity of Ms J’s evidence but notes that she appeared (when she gave evidence) to be prepared to move with her children to Iraq.

(b)    At R [145] the Tribunal makes a prediction that, despite her expressed intentions, Ms J would not move her children to Iraq. The circumstances that would arise if the applicant were removed to Iraq are discussed on that footing.

(c)    It is apparent that, at R [147], the Tribunal is addressing the circumstances that would arise if the applicant were to remain in Australia. The risk that Ms J might prioritise her relationship with the applicant over the interests of her children was expressed to be “relevant” in that scenario.

Conclusions on the proposed grounds

67    For the reasons set out above, grounds 1, 2 and 6 are without merit. Considered on an interlocutory basis, grounds 4 and 5 are clearly arguable; however, reasonable arguments can be (and have been) put in response.

Resolution

68    This is not a case where an absence of merit in the proposed substantive application constitutes a reason for refusing an extension of time. Nor, however, is it a case where the proposed substantive application is overwhelmingly strong (or “exceptional”) so as to justify an extension of time of more than four and a half years in circumstances where the explanation for that delay is inadequate.

69    For these reasons, the application to extend time will be dismissed.

70    The Minister sought his costs of the application and the applicant did not point to any reason why costs should not follow the event. There will therefore be an order that the applicant pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    6 July 2026