Federal Court of Australia

FKCV v Minister for Immigration and Citizenship [2026] FCA 864

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent made on 28 April 2025 is set aside.

2.    The matter is remitted to the second respondent for determination according to law.

3.    The first respondent must pay the applicant’s costs of the proceeding, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    These reasons concern an application for judicial review of a decision of the Administrative Review Tribunal. The Tribunal affirmed the decision of a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the applicant’s visa.

2    The applicant was born in Ethiopia in 1993, to Sudanese parents. He came to Australia in 2007. In 2020, when he was in Australia under a Global Special Humanitarian (Class XB) (Subclass 202) visa (Humanitarian Visa), he was convicted of a serious offence and sentenced to a term of imprisonment. The Humanitarian Visa was therefore cancelled under s 501(3A) of the Migration Act 1958 (Cth), on the basis that the applicant had a substantial criminal record and was serving a sentence of imprisonment on a full-time basis.

3    The applicant made representations to the Minister as to why the cancellation of the Humanitarian Visa should be revoked. Acting under s 501CA(4) of the Act, a delegate of the Minister decided not to revoke the cancellation. The applicant sought review of that decision in the Tribunal. The Tribunal affirmed the delegate’s decision but that decision was quashed on judicial review in this Court in 2024.

4    The matter was remitted to the Tribunal which, on 28 April 2025, again affirmed the delegate’s decision. In doing so, and as required by s 499(2A) of the Act, the Tribunal followed Ministerial ‘Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’. This required the Tribunal to treat as primary considerations (among others) the protection of the Australian community and the expectations of that community.

5    The applicant seeks judicial review of the Tribunal’s decision on two grounds. Each of them arises out of the contention (which is not accepted by the Minister) that the applicant cannot be returned to Sudan, so the consequence of the cancellation of the Humanitarian Visa is that he will be released into the community under a Bridging R (Class WR) visa (BVR). This follows from the decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37, in which the High Court held the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia comes to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future.

6    The applicant’s first ground is that the Tribunal acted illogically or irrationally in its consideration of the protection of the Australian community and the expectations of that community as required by Direction No 110. This is said to have occurred because the Tribunal did not have regard to the likelihood that if it did not revoke the cancellation of the Humanitarian Visa, the applicant would be released into the community anyway, so that the community would not be protected from any repeat offending on his part, at least not to the extent that it would be if he were kept in immigration detention.

7    The applicant’s second ground is that the Tribunal failed to take into account the legal consequences of a decision not to revoke, specifically, that the practical result of such a decision would mean that the applicant would be in the community without the ability to work and that he would be subject to what are said to be mandatory and onerous conditions imposed on the grant of a BVR.

8    For the following reasons, the Tribunal’s decision will be set aside and the matter will be remitted to the Tribunal.

The Tribunal’s decision

9    The confined nature of the grounds of review means that it is not necessary to describe the background of the matter or the decision of the Tribunal in comprehensive detail.

10    In relation to the primary consideration of the protection of the Australian community, the Tribunal followed Direction No 110 and considered the nature and seriousness of the applicant’s past conduct and the risk to the Australian community should he commit further offences or engage in other serious conduct. The Tribunal found that the applicant’s past offending was very serious and that there was an unacceptable risk of future reoffending. The Tribunal reasoned to those findings by way of a straightforward assessment of the applicant’s record of offending and evidence as to rehabilitation and other protective factors. The applicant does not seek to impugn these findings, as far as they went.

11    The applicant’s first contention under ground 1 concerns the Tribunal’s conclusion that the protection of the Australian community weighed heavily against revocation. The contention is based on the point that the Tribunal’s reasons in relation to this primary consideration evince no consideration of the likelihood that, if the cancellation of the Humanitarian Visa remained in force, the protection of the community would be less than complete, because the applicant would be released into the community on a bridging visa. The point is factually correct: the Tribunal’s reasons do not demonstrate any engagement with this possibility specifically in relation to the first primary consideration. As is about to be mentioned, however, a later part of the reasons show that the Tribunal was aware of the likelihood that the applicant would be released into the community.

12    Later, when the Tribunal came to consider the expectations of the Australian community, it found that the nature of the applicant’s past conduct, which included sexual offending and family violence, raised serious character concerns, meaning that this primary consideration also weighed heavily against revocation. The Tribunal commenced this part of its reasons with a quote from Direction No 110 which provides that, where non-citizens have breached the expectation that they will obey the law, or there is an unacceptable risk that they may do so, ‘the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia’. Again, this part of the Tribunal’s reasons contains no suggestion that it had considered the likelihood that, even if the Humanitarian Visa were to remain cancelled, the applicant would remain in Australia, out of immigration detention.

13    The only section of the Tribunal’s reasons that needs to be described in any detail is under the heading ‘Legal consequences of the decision’. That was one of the ‘other considerations’ that Direction No 110 required the Tribunal to take into account, where relevant.

14    The section starts with an acknowledgment that Direction No 110 ‘recites provisions of the Act underpinning the power to detain and remove unlawful non-citizens from Australia as soon as reasonably practicable’ (Tribunal’s reasons (TR) para 92). But, the Tribunal said, ‘This framework sits with Australia’s non-refoulement obligations, which prevent removal of a non-citizen to a place where they are at risk of harm as defined by reference to protection obligations in the Act’. The Tribunal was thereby summarising briefly the matters that are raised in paragraph 9.1 of Direction No 110 under the heading ‘Legal consequences of decision under section 501 or 501CA’.

15    The Tribunal then recorded concerns expressed by the applicant that he would be killed if he were returned to ‘his country of citizenship’ which, in the applicant’s personal circumstances form filed to seek revocation of the cancellation, he seemed to identify as Ethiopia. The Tribunal noted, however, that he had requested repatriation to Sudan but had withdrawn the request.

16    The Tribunal’s reasons then said (at para 95):

I also took the opportunity of ascertaining during closing submissions FKCV’s awareness of the bridging visa system. The Applicant was aware of bridging visas, and also has the understanding that what he described as long-term detention was no longer a possibility. In response to the proposition that he may, in such circumstances, be free to live and work in the community, he replied ‘OK, so long as I can be with the kids’.

17    The Tribunal then considered assessments conducted by the Department of Home Affairs on the basis that the applicant is a citizen of Sudan. In a Protection Visa Decision Record from early 2022, the Department concluded that the applicant was not owed protection obligations, since he did not have a well-founded fear of persecution and did not face significant harm so that complementary protection obligations were not engaged.

18    The Tribunal then recorded submissions from the Minister to the effect that an application for a protection visa had been refused, so the applicant was ineligible to reapply for a protection visa, meaning in effect that any claims of harm needed to be considered by the Tribunal and not separately via a later protection visa application. The Minister noted that he had lodged country information more recent than the protection visa decision made by the Minister’s delegate. The Tribunal recorded at this point (para 98) that:

The [Minister] submitted that were FKCV to be in the community on a bridging visa, he remained subject to removal, and – following Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, at [3] – genuine consideration must be given to the human consequences of decision making under the character provisions.

19    Then, at TR paragraph 99 the Tribunal said (emphasis omitted):

In written submissions, the [Minister] contends the legal consequences of a decision not to revoke in this matter are that FKCV will remain an unlawful non-citizen and be detained until removal as soon as reasonably practicable (RSFIC [83]). The Applicant may be detained for longer than other non-citizens, but there is no reasonable prospect of him being removed in the reasonably foreseeable future, and will most likely be granted a Bridging Visa R. This contention appears to result at least in part from the information provided in the submission that during the process of seeking to remove FKCV, ‘the Sudanese Government could not identify the applicant as a citizen of Sudan’ [82].

20    The citation of ‘RSFIC’ refers to the Minister’s Statement of Facts, Issues and Contentions that was before the Tribunal. The Minister submits in this Court that the Tribunal’s summary of his position set out in that document is inaccurate. Paragraph 83 of the RSFIC is:

In those circumstances, if the Tribunal decides not to revoke the cancellation of the applicant’s visa, that will have adverse legal consequences for him in that he will remain an unlawful non-citizen, he will be removed from Australia as soon as reasonably practicable, and, will be held in immigration detention until removed. The Minister acknowledges that given the uncertainty in relation to the applicant’s citizenship that he may be in detention for a longer period than other non-citizens. Noting, of course, that if there was no real prospect of the applicant being removed from Australia in the reasonably foreseeable future, then he would be released from detention in accordance with NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37 and most likely granted a BVR. Although, this is a possibility, rather than a necessary consequence of the Tribunal’s decision.

21    It can be seen that the Minister in fact submitted that the grant of a BVR was a possibility, as distinct from a necessary consequence, which would only arise ‘if there was no real prospect of the applicant being removed from Australia in the reasonably foreseeable future’. The RSFIC did not say in terms that the grant of a BVR was the ‘most likely’ outcome. But nothing turns on that for present purposes; the Minister did not submit in this Court that the Tribunal’s findings in this part of its reasons should somehow be set aside or disregarded.

22    In any event, the Tribunal went on to reason as follows (emphasis omitted):

100.    The Direction provides that I must give consideration to claims raised by the Applicant in circumstances where there is no protection finding [9.1.2(1)]. Given the detailed consideration previously given to FKCV’s citizenship, and his own request for repatriation to Sudan, I consider it reasonable to proceed on the basis that Sudan is the relevant country of reference. The country material lodged by the Respondent is a British Home Office policy and information note on the security situation in Sudan, dated January 2025. In summary, I note:

(a)     fighting broke out in April 2023 and has been reported in all of Sudan’s 18 states;

(b)     violence has led to potentially 150,000 deaths, with some arising from ethnic tension;

(c)     widespread arrest and detention of civilians has been documented, as well as a there being internally displaced persons numbering in the millions, and destruction of civilian infrastructure;

(d)     the level of indiscriminate violence in states including the Blue Nile state ‘is not at such a level to mean that there is a general risk of serious harm by being there’;

(e)     however as the situation is volatile, a person may still face ‘real risk’ in such locations; and

(f)     tabulated reports of ‘organised violence’ over time show relatively low levels in the Blue Nile State, but a distinct increase in such incidents in the fourth quarter of 2024 [12.1.5].

101.     The circumstances in Sudan have changed dramatically since the refusal of FKCV’s protection visa. While there may be no unequivocal indication that the Applicant would face a particular kind of harm as envisaged in the Act (in the form of persecution as a refugee, or other specified form of serious harm), I must give FKCV’s claims consideration and the current country information provides critical context. The widespread conflict and its impact upon the population indicates to me that there is more than a mere possibility that given FKCV’s lack of active social or family connections, criminal record, and having matured in a foreign country, he may be vulnerable to harm for the reasons he has claimed.

102.     The Respondent appears to have appropriately acknowledged the likelihood that, given these conditions, there may be a very limited likelihood of removal to Sudan in the foreseeable future. This would most likely mean that the immediate effect, as a person already in immigration detention, would be FKCV is released on a bridging visa, but still subject legally to the possibility of removal somewhere, at some future time.

103.     Accordingly, I find that this consideration weighs in favour of revocation.

23    Finally, in its ultimate conclusion, the Tribunal gave great weight to the protection of the Australian community, and to the expectations of the Australian community (as well as the applicant’s record of family violence). These considerations outweighed the ‘relatively modest’ weight in favour of revocation which the Tribunal had afforded to the other primary considerations and the other considerations under Direction No 110 (TR para 114). Hence the delegate’s decision not to revoke the cancellation of the Humanitarian Visa was again affirmed.

Ground 1

24    Ground 1 has two aspects: one concerns the primary consideration of the protection of the Australian community, the other concerns the primary consideration of the expectations of that community. The applicant contends in respect of each that in giving weight to it, the Tribunal failed to grapple with the finding at TR paragraph 102 that has just been set out. This is said to have made its findings illogical or irrational.

Cases

25    An error similar to the kind alleged under ground 1 was found to be jurisdictional in KFTJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 958 (KFTJ FI – Wigney J); upheld on appeal in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v KFTJ [2026] FCAFC 52 (KFTJ FC – Perry, Kennett and Shariff JJ). Colvin J found jurisdictional error of a similar kind in JMNR v Minister for Immigration and Citizenship [2026] FCA 50. On the other hand, Full Courts have found that a similar alleged error was not a jurisdictional error in XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115; (2025) 311 FCR 539 (Wheelahan, Stewart and Needham JJ) and Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45 (constituted as in KFTJ FC).

26    These different outcomes are not the result of any difference in opinion as to the underlying principles. After all, those principles are the well-established ones that govern contentions of legal unreasonableness, including illogicality and irrationality. I respectfully adopt the summary given in KFTJ FI at [18]:

Illogical or irrational reasoning may support a finding that the resulting decision was legally unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. Illogicality or irrationality in this context, however, must mean something more than emphatic disagreement with the reasoning or findings: SZMDS at [124], [131]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61]. For an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact, ‘extreme’ illogicality or irrationality must generally be shown, ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148]; see also SZMDS at [131].

27    In KFTJ FI at [19] Wigney J noted, by reference to authority, that rationality or logicality could pertain both to the outcome of the decision and the process that led to it. And at [20] his Honour noted that it is the reasons given by the decision maker to which the Court looks in order to understand why the power was exercised in the way that it was: see also SSVJ at [37]. I respectfully adopt those statements of principle too.

28    That is all uncontentious; the differences in outcome in the cases listed at the beginning of this part of the judgment come from applying them to the specific facts, and in particular the specific reasoning of the decision maker. Legal unreasonableness is an area where the outcomes are notoriously sensitive to the particular facts: see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30; at [59] (Gageler J); see also SSVJ at [36]. Nevertheless, the factual scenarios that variously have and have not been held to result in jurisdictional error of this kind can be helpful illustrations.

29    In XKTK, the Full Court found that the Minister had not fallen into error in reasoning that the protection of the Australian community and the expectations of that community were important considerations in deciding to cancel the appellant’s visa under s 501BA of the Migration Act. That was because when the Minister’s reasons were read fairly and as a whole, it was apparent that he understood that the appellant was likely to be released into the community on a BVR and that the Minister had reasoned that this visa offered a measure of protection to the community because of the conditions that attached to it: see XKTK at [48]-[51] (Wheelahan J) and [114] (Stewart and Needham JJ).

30    In JMNR, in contrast, it was held that a decision of the Tribunal was affected by jurisdictional error. It was submitted that the Tribunal had proceeded on the assumption that cancellation of the visa would mean that the applicant was removed from the community, when in fact due to NZYQ he was likely to be released into the community. An additional factor on which the Minister in this case relies to distinguish JMNR was that the applicant had mental health issues that could have been exacerbated by conditions that would be applied to his release, which could in turn affect the likelihood of reoffending.

31    Colvin J held (at [91]) that it was incumbent on the Tribunal to have regard at some point in its reasons to the relevance for its conclusions about the protection of the Australian community of the prospect that the applicant would be released into the community, and of the conditions that would pertain to his release. The Tribunal had concluded that the protection of the Australian community weighed heavily in favour of not revoking the cancellation of the visa, but had not explained how the protection would be afforded and ‘there was no reasoning that brought to account the likelihood that the applicant would be released into the Australian community because he could not be detained indefinitely’: JMNR at [94]-[95].

32    While, in a separate part of the reasons, the Tribunal had engaged with the conditions that would be likely to apply if the applicant was released on a BVR, Colvin J said at [104] that ‘[s]tarkly, there was a failure to bring to account as part of the conclusion the significance of the part of the reasons that recognise that the applicant will remain in Australia on a BVR with possible consequences for his mental health.’ His Honour also held that it was implicit in the last paragraph of the Tribunal’s reasons that the cancellation of the applicant’s former visa would mean that he was not in the Australian community, with no consideration of how the community would be protected if he was released on a BVR: JMNR at [106]. Colvin J thus considered that the Tribunal had reasoned ‘on the false premise that non-revocation of the visa cancellation would mean that the applicant would be removed from the Australian community’: JMNR at [107].

33    It is worth noting a point of similarity between JMNR and the present case that distinguishes them from the other cases summarised here. It is that both concern reasoning of the Tribunal which, unlike the Minister in the other cases, was bound to observe the mandatory ministerial directions issued under s 499 of the Migration Act, which required consideration of the protection of the Australian community and the expectations of the community to be approached in a particular way. In JMNR Colvin J made it clear that while the Tribunal was bound to proceed that way, that did not absolve it of the need (in an appropriate case) to bring to account separately the likelihood that the applicant would be released into the community on a visa subject to certain conditions: see in particular JMNR at [91].

34    In SSVJ, in contrast to JMNR, the Full Court held that the Minister’s reasoning in a decision under s 501BA to cancel the respondent’s visa did not involve jurisdictional error. The Court acknowledged that the Minister had not explained why the protection of the community would be advanced by the cancellation. That was in circumstances where the Minister had expressly acknowledged that the cancellation would not lead to the respondent being detained, and that there was no current prospect of his being removed from Australia. The Minister had noted (in the section of his reasons concerning the exercise of discretion) that the effect of NZYQ was that the respondent would not be taken into detention and would continue to reside in the community. The Minister had said that he would separately consider which visa would be issued to the respondent and the conditions that would attach to it, while at the same time acknowledging that a BVR would be the only visa for which the respondent would be eligible to apply, assuming that he remained in Australia: see SSVJ at [12].

35    However, noting that the sequential expression of reasons did not mean the decision maker decided each issue in isolation from the others (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [14]), the Full Court in SSVJ found that the Minister must be taken to have been aware of the consequences of cancellation of the respondent’s then visa. Those consequences would include the grant of a visa that would come with conditions that would take account of the respondent’s criminal record, thus providing a rational foundation for an understanding implicit in the Minister’s reasons that cancelling the visa would provide some protection to the community: see SSVJ at [28]-[29].

36    Finally, in KFTJ FC a Full Court constituted by the same members as in SSVJ found that similar but not identical reasoning of the Minister on this point did involve jurisdictional error. Their Honours explained the difference between that outcome and their decision in SSVJ by reference to two distinguishing factors (a third distinguishing factor, being a nuance of expression which supported the position of the Minister, need not be mentioned here). First, the Minister had left the decision as to what new visa should issue if the respondent’s previous visa were cancelled to a delegate, so it could not be said that he had any basis for an assumption that the new visa would have conditions that would protect the community: KFTJ FC at [45]-[47]. And second, the Minister had expressly declined to take any view about the potential for the respondent to be permitted to apply for a new visa, or what class of visa that might be, or the prospects of an application succeeding. The reasons thus expressly left ‘a blank space’ where any understanding of the likely new visa could have been expressed: KFTJ FC at [48].

37    There was also a submission in KFTJ FC that the Minister’s consideration of the expectations of the Australian community was irrational because it did not take account of the likelihood that the respondent would be released into the community. The Full Court accepted that submission, largely on the basis of ‘boilerplate expressions’ showing that the Minister was addressing the community’s wishes that offenders not remain in Australia, and not receive a visa; wishes that were not going to be met in the case of the respondent: see KFTJ FC at [53]-[54]. At [55] the Full Court endorsed Wigney J’s description of this at first instance as a ‘logical gap’ .

38    The point of going through these different cases, leading to different outcomes, is not to extract some overarching principle. Beyond the basic principles of legal unreasonableness, there is none: see SSVJ at [30] and [36]. The point of the exercise is to illustrate how in each case the outcome will depend on a proper understanding of the reasons delivered in that case. There is no substitute for the familiar task of undertaking a careful, fair reading of the Tribunal’s reasons, as a whole, without an eye attuned to the detection of error. To that task I now turn.

The alleged error involving the protection of the Australian community

39    The reasoning of the Tribunal relevant to the first aspect of ground 1 is set out above. It is not to be assumed that the Tribunal considered the matters described respectively under the headings ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ and ‘Legal consequences of the decision’ in isolation from each other. I will proceed on the basis, rather, that the Tribunal considered all the issues before writing any part of its reasons: see again Applicant S20/2002 at [14] (Gleeson CJ). It is also well-established that a mere absence of expressed reasoning on a subject does not mean that the subject was not considered by the decision maker: see ETA067 v The Republic of Nauru [2018] HCA 46 at [13]. I also proceed, of course, on the basis that the onus is on the applicant to persuade me that the reasons indicate that the Tribunal reasoned illogically.

40    Even observing those constraints, I am so persuaded.

41    I start by finding that, whatever submissions the Minister may have made to it, the Tribunal clearly thought that the ‘most likely’ outcome of not revoking the cancellation of the Humanitarian Visa was that the applicant could not be removed to Sudan (or anywhere else) in the foreseeable future, so that he would be released into the Australian community on a BVR. While the Minister maintained in this Court that this was only a possibility, it is clear from the Tribunal’s reasons as a whole that it found it to be a likelihood.

42    That brings into clear view the apparent logical contradiction between concluding that the Australian community would be protected from further offending by the applicant, and finding that it was likely that the applicant would be released into the community. For the following reasons, I consider that this was not just an apparent contradiction in the Tribunal’s reasons, but a real one.

43    First, the Tribunal’s reasoning about the protection of the Australian community and the expectations of that community, demonstrates no awareness of the possibility that the applicant might be released into that community on a BVR. Although, as said, that reasoning needs to be considered together with the reasoning that does refer to a BVR; it remains the case that there is no hint that the Tribunal brought the latter reasoning to bear on the former.

44    Second, the Tribunal’s reasoning about the legal consequences of its decision, in which the possibility of release on a BVR is acknowledged, demonstrates no awareness of the basis on which the applicant might live in the community if a BVR were to be granted. That is, there is no mention that the BVR is likely to be subject to conditions, let alone any apparent awareness that some of the conditions will be designed to offer protection to the community from the risk of the applicant reoffending. To the contrary, the only awareness of the effect of a BVR demonstrated by the Tribunal was that it put to the applicant that he may be ‘free to live and work in the community’: see [16] above.

45    There was no evidence before me of what the conditions on the BVR might be. Nor was any submission made that the Tribunal could be expected to have knowledge of the likely conditions, given some general experience in resolving applications for review of the cancellation of visas of persons affected by the decision in NZYQ: cf. SSVJ at [38]. So there is no basis to think that the Tribunal had in mind any conditions that might attach to the BVR.

46    Third, the Tribunal’s reasoning about legal consequences of its decision needs to be understood in the context of what it was considering at that point. That is necessary for a proper understanding of the Tribunal’s mention at TR paragraph 102 of the applicant’s possible release on a bridging visa ‘subject legally to the possibility of removal somewhere, at some future time’.

47    Immediately after saying that, the Tribunal went on to say that, accordingly, it found that the consideration of the legal consequences of the decision weighed in favour of revocation. In light of all the discussion that preceded this, this can only sensibly be understood as the Tribunal reasoning that if the applicant were to be removed from Australia as a consequence of cancellation of the Humanitarian Visa, he would be likely to be returned to Sudan, and may face harm if that occurs, which was a matter weighing in favour of revocation of the cancellation. Understood in that context, the preceding paragraph 102 contributes to that conclusion by noting that the applicant’s likely release into the community would be the ‘immediate effect’ of not revoking the cancellation, but he would still be exposed to a risk of harm by the ‘possibility of removal somewhere, at some future time’. That is in a context where the only possible removal destinations canvassed by the Tribunal were Sudan, South Sudan and Ethiopia. In other words, even if cancellation of the Humanitarian Visa did not result in removal immediately, the possibility that it would happen, and so the risk of harm to the applicant, would remain.

48    Understood that way, there is no basis to think that the Tribunal’s bare acknowledgment of the possibility of removal after the grant of a BVR evinced any appreciation that this possibility offered a measure of protection to the Australian community. There is no hint, for example, that the Tribunal reasoned that his removal, later if not immediate, would give at least some protection to the community. To conclude that this is how the Tribunal reasoned would be to strain to reconstruct its reasoning into validity: see Minister for Immigration and Citizenship v DVRL [2026] FCAFC 73 at [141].

49    Paragraph 102 of the Tribunal’s reasons is better understood as a finding about the risk of harm to the applicant, as a legal consequence of cancellation of the Humanitarian Visa. Making findings about that was entirely consistent with what was required of the Tribunal by paragraphs 9(1)(a) and 9.1 of Direction No 110. There is no basis to conclude that the Tribunal engaged in any sense with the possible implications of the grant of a BVR for the protection of the Australian community.

50    As a result, I consider that the Tribunal’s reasoning was illogical in a manner similar to the reasoning found to have been illogical in JMNR and KFTJ FI (as upheld in KFTJ FC). While similar, I reach that conclusion on the basis of the particular reasoning of the Tribunal here. That reasoning was that the protection of the Australian community weighed heavily against revoking the cancellation of the Humanitarian Visa, while at the same time it was likely that the applicant would be released into the community anyway. That is illogical. The illogicality is significant for the Tribunal’s decision as a whole; it was not a mere ‘lapse in logic’. The reasons demonstrate no awareness by the Tribunal of characteristics of a BVR that might have provided a rational foundation for the view that if the cancellation were permitted to stand, the Australian community would be better protected against reoffending than it would be if the cancellation were revoked. There is no hint that the Tribunal brought the likelihood of the issue of a BVR to account in relation to its views about the protection of the Australian community: JMNR at [91] and [104]. That is so even if the reasons are read as a whole on the assumption that the Tribunal had all the different matters it addressed in mind at the same time when it was deliberating.

51    The Minister advanced a number of submissions as to why the Tribunal’s reasons were not illogical in this way.

52    The first was that the Tribunal should be understood not to have found that there was no reasonable prospect that the applicant would be removed from Australia in the foreseeable future. The Minister focussed on the statement at TR paragraph 95 that the applicant ‘may … be free to live and work in the community’ and at TR paragraph 102 that ‘there may be a very limited likelihood of removal to Sudan in the foreseeable future’ (emphasis added in both quotes). But this submission takes those passages out of context. The first was clearly just a way of putting a general proposition to the applicant at the hearing, and no weight can be put on it as a finding by the Tribunal (save, as stated above, to the extent that it is the only indication of what the Tribunal thought a BVR would mean for the applicant). As to the second, read in the context of paragraph 102 as a whole, it is part of a finding that the issue of a BVR to the applicant was the most likely outcome of cancellation of the Humanitarian Visa. The Minister’s submission puts too much weight on the Tribunal’s turn of phrase in the first sentence of paragraph 102.

53    The Minister’s next submission was that TR paragraph 102 demonstrates that the Tribunal well understood that the effect of a decision not to revoke cancellation of the Humanitarian Visa was that the applicant would likely be released into the community, subject to removal at a future time. That may be so, but for the reasons articulated above, the Tribunal’s reasons evince no consideration of how that conclusion could be reconciled with its earlier conclusion that the protection of the Australian community weighed in favour of maintaining cancellation. On the principles summarised above, for the Tribunal to be taken to have reasoned in a way that was open to it as a matter of logic, that must be found in its written reasons read together with its operative decision. It must be found there implicitly or by inference, if not expressly, paying due regard to the principle that an absence of express consideration of a matter, and an absence of actual consideration, are not the same thing. But as I have explained, the preferable inference here is that the Tribunal did not connect its observation that the applicant might be removed in future to its findings about the protection of the Australian community. Its concern was, rather, that removal might lead to the applicant being harmed.

54    For completeness, I also mention that the Minister relied on ZTBL v Minister for Immigration and Citizenship [2026] FCAFC 48 where, in an afterword not relevant to the challenge before it, the Full Court said at [89] that:

reference may be made to the observations of the Full Court of this Court in XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115; (2025) 311 FCR 539 at [51] (Wheelahan J), [113] (Stewart and Needham JJ) and the High Court in Plaintiff S22/2025 [v Minister for Immigration and Multicultural Affairs [2025] HCA 36], both of which recognised that there is not necessarily illogicality or irrationality in cancelling a non-citizen’s visa in circumstances where the non-citizen will nonetheless remain in Australia on a BVR. A cancellation of a non-citizen’s visa in such circumstances can ensure that the non-citizen remains liable to be removed from Australia, even if their removal is not reasonably practicable at the time of the decision.

55    I do not consider that this advances the Minister’s position. While it is true that there is no necessary illogicality in cancelling a previous visa when the non-citizen will remain in Australia on a BVR, whether there is illogicality in a given case will still depend on the particular reasons expressed by the decision maker in that case.

56    While on that subject, as already mentioned, counsel for the Minister sought to distinguish JMNR from the present case because an important aspect of JMNR was that the applicant had mental health issues and the cancellation of his previous visa might affect his ability to obtain treatment, where a lack of treatment might increase the probability that he would reoffend. I accept that this was important in JMNR but I do not accept that it was determinative in that case, and I consider that the core reasoning in JMNR is consistent with my reasoning set out above. It is more to the point, though, to reiterate that, as is common ground, the question cannot be resolved by identifying similarities with and differences between this case and other decided cases, since each case will turn on its own facts.

57    Counsel for the Minister also submitted that there was nothing irrational about the two key findings, even if they are considered on their face. That is, he submitted that finding that the protection of the Australian community weighed against revoking the cancellation of the Humanitarian Visa, and finding that the applicant would ‘most likely’ be released into the community, were not inconsistent on their face. But with respect, they are. For the whole premise of the first finding, as amply demonstrated by Direction No 110, is that cancelling a visa will protect the community because it will ensure that the non-citizen is not in the community. While it might have been possible to reason in a way that reconciles the two, I am persuaded on the balance of probabilities that the Tribunal in this case did not reason in such a way.

58    The Minister rightly accepts that an error of that kind carries with it no separate requirement of materiality in order to be jurisdictional. I will uphold ground 1 on the basis of the above matters.

The Tribunal’s reasoning about the expectations of the Australian community

59    Counsel for the applicant submitted that if the Court was satisfied as to the error just found, there would be no need to make a finding about the other error advanced under ground 1. But it is appropriate to deal with it briefly.

60    The argument was that it was illogical for the Tribunal to give weight to the expectations of the Australian community that a non-citizen who has breached the law should not remain in Australia when at the same time the Tribunal found that he would remain in Australia, likely in the community under a BVR.

61    However, in referring as it did to ‘character concerns’ (see [12] above) the Tribunal also seemed to have regard to the community expectation set out in paragraph 8.5(2) of Direction No 110, that is engaged when ‘the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.’

62    As the Minister submitted, in Plaintiff S22/2025, the High Court held at [27] that understood in context, the ‘visa’ being referred to here is the visa that the non-citizen previously held, which in this case was the Humanitarian Visa. There is therefore nothing inconsistent in reasoning that the Australian community would expect that visa to be cancelled, in circumstances where the non-citizen may receive a different visa, namely a BVR. I therefore do not uphold this second aspect of ground 1.

63    Counsel for the applicant sought to cast the argument as one about the weight that the Tribunal put on the expectations of the Australian community. But once the basic premise of inconsistency is removed, as it is by Plaintiff S22/2025, criticising the weight placed on the consideration strays into impermissible merits review. Direction No 110, after all, expressly directs decision makers to proceed on the basis of the Government’s views as articulated in it, without independently assessing the community’s expectations in the particular case. There is nothing in the Tribunal’s reasons to suggest the Tribunal’s assessment of the weight to be placed on this consideration, after it had proceeded as required by Direction No 110, so miscarried that it is properly characterised as legally unreasonable.

64    Attempts by counsel to rely on KFTJ FI in this regard founder, with respect, on the point made in KFTJ FC at [52] that, unlike Plaintiff S22/2025, KFTJ’s case was a decision of the Minister in which the mandatory Ministerial direction was not ‘in play’. The same point of distinction applies to this case.

Ground 2

65    Ground 2 is that the Tribunal fell into jurisdictional error by failing to lawfully consider the legal consequences of an adverse decision to the applicant and by making its decision based on illogical, irrational or unreasonable findings. Both of these errors are said to concern the applicant’s foreign citizenship status. The key particular to the ground is:

(D)    The Tribunal failed to lawfully consider certain immediate statutory and/or practical consequences for the Applicant of its decision in the Applicant’s circumstances and, in particular (1) his inability to work while an unlawful-non citizen, and (2) that he would be subject to onerous conditions imposed on the grant of a Bridging R visa.

66    This ground is based on the principle, reflected in paragraph 9.1 of Direction No 110, that in making its decision, the Tribunal was required to take account of the legal consequences of the decision. However the direction is not exhaustive in that regard: Doan v Minister for Immigration and Multicultural Affairs [2025] FCA 1411 at [22] (Banks-Smith J).

67    In KFTJ FI at [99], Wigney J summarised applicable authorities as follows:

In considering whether to cancel the applicant’s visa, the Minister was required to take into account the direct and immediate legal or statutory consequences of the decision to cancel the visa: NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 at [9]-[10] (Allsop CJ and Katzmann J); Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146; [2016] FCAFC 177 at [84] and [88] (Kenny, Flick and Griffiths JJ); AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 304 FCR 586; [2024] FCAFC 103 at [33] (Murphy, Stewart and McEvoy JJ). He was also required to take into account the practical consequences of the decision: NBMZ at [177] (Buchanan J, with whom Allsop CJ and Katzmann J agreed at [1]); Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29; [2016] FCAFC 61 at [107] (North J) and [129] (Kenny and Perry JJ).

68    In KFTJ FC at [58], however, the Full Court observed that there was ‘a good deal of force’ in a submission that the authorities that Wigney J took into account ‘establish only a duty to take account of the direct statutory consequences of a decision’. But:

acceptance of that submission would not be sufficient in itself to make the unreasonableness discerned by his Honour disappear. It would remain the case that the Minister chose to treat the consequences of cancelling the respondent’s visa as a relevant consideration in the exercise of his discretion and then purported to analyse those consequences in a way that the primary judge considered to be disingenuous and deeply flawed. No complaint is made about that part of his Honour’s reasoning.

69    Of course, in assessing whether the Tribunal has taken a matter into account, its reasons must be read consistently with the approach set out above, so that a lack of express mention of a matter in its reasons does not necessarily mean that it did not take the matter into account.

70    In this case, I am not satisfied that the Tribunal failed to take into account the first of the legal consequences said to have flowed from its decision, namely that if the Humanitarian Visa remained cancelled, the applicant would not be able to work. The basis cited for this as a consequence of cancellation was s 245AB of the Migration Act. But as the applicant’s submissions effectively acknowledged, this only applies to unlawful non-citizens, and the applicant will not meet that description if he is granted a BVR. The applicant has not submitted that an inability to lawfully work would be a consequence of his holding a BVR.

71    As explained above, I consider that the Tribunal found that the issue of a BVR to the applicant would be the most likely outcome of the cancellation of his Humanitarian Visa. The fact that the Tribunal’s reasons do not expressly mention the applicant’s ability to work is therefore readily explicable: it did not think that he would be an unlawful non-citizen. The applicant articulated no plausible scenario in which he might hold no visa and be released into the community, contrary to the obligation of officers of the Department under s 189 of the Act to detain unlawful non-citizens. Further, the Tribunal did put to the applicant that he would be ‘free to live and work in the community’. That is consistent with the Tribunal understanding that, with a BVR, the applicant would be free to find work. The applicant did not point to any reason to think that this understanding was wrong.

72    I do find, however, that the Tribunal fell into error by failing to consider the second alleged legal consequence of its decision, namely that the applicant would be required to comply with conditions attaching to the BVR. It is true that the applicant did not tender evidence or point to statutory provisions to make good its submissions that conditions of that kind would apply, let alone what those conditions would be. But the Minister did not take issue with the proposition that conditions would attach to the BVR, or with the implied suggestion that some of them would be onerous. For reasons given above, I find that the Tribunal did not turn its mind to whether any conditions would attach to the BVR, or what they would be.

73    It is not necessary to determine the ultimate effect of the authorities identified at [67]-[68] above concerning how ‘direct’ a legal consequence must be for it to be a mandatory consideration. For as the Minister did in KFTJ FI, so here, the Tribunal chose to identify the issue of a BVR as an important consequence of a decision not to revoke the cancellation of the Humanitarian Visa. It was incumbent on it, then, to take account of what that would mean for the applicant. In contrast to KFTJ FI, I do not suggest that the Tribunal’s reasoning was ‘disingenuous’ or ‘deeply flawed’. But it did not give any consideration to the consequences for the applicant of what it found to be the most likely outcome of its decision, at least in the short to medium term.

74    The Minister resists that conclusion on the basis that in Plaintiff S22/2025 at [19], the High Court found that the delegate making the decision there correctly recognised that the issue of a BVR, and the conditions attaching to it, was a separate decision to be made by the Minister, and no part of the role of the delegate there who, like the Tribunal here, was considering the exercise of a power to revoke under s 501CA(4).

75    It is not clear that Plaintiff S22/2025 is authority for the proposition that in all circumstances it is only the immediate consequences of the s 501CA(4) decision alone that must be taken into account. The way the Full Court approaches the question in KFTJ FC suggests that the principle is not restricted in that way. It does not appear that Plaintiff S22/2025 was cited to the Full Court on that point; in any event it is distinguishable. In Plaintiff S22/2025, the delegate expressly noted that the Minister would separately consider the type of visa to be issued to the plaintiff and the conditions to be imposed on that visa: see Plaintiff S22/2025 at [9]. At [18] the High Court therefore found, relevantly, that the delegate’s mention of this was an acknowledgment that:

the process by which it would be decided if the plaintiff would be granted a visa regulating his residing in the community and, if so, the conditions to be imposed on that visa would be the subject of separate consideration (and, by implication, a separate decision) from the decision the delegate was making not to revoke the cancellation of the plaintiff’s [previous visa].

76    There is no such acknowledgement in the Tribunal’s reasons here. It cannot be supposed, then, that the Tribunal turned its mind to the fact that conditions could attach to a BVR, but decided that this was a matter for the Minister, or otherwise concluded that those conditions were not legal consequences of its decision not to revoke the cancellation. The better view is that, occupied as it was with the question of whether return to Sudan would cause harm to the applicant or would not be reasonably possible, it did not turn its mind to the legal or practical consequences of the issue of a BVR at all, despite having found that this was the most likely outcome of its decision.

77    The Minister also did not suggest that this error would not be material.

78    Ground 2 is upheld.

Conclusion

79    Both grounds of review are upheld. The decision of the Tribunal will be set aside and the matter will be remitted to it for consideration according to law. Costs should follow the event.

Associate:

Dated:    6 July 2026