Federal Court of Australia

BKRD v Minister for Immigration and Citizenship [2026] FCA 865

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.

2.    The further amended originating application be dismissed.

3.    The Applicant pay the costs of the First Respondent, 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

HESPE J:

INTRODUCTION

1    This is an application for judicial review of a decision of the Administrative Review Tribunal which affirmed a decision of the delegate of the first respondent (the Minister) made under s 501CA of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the applicant’s Class BC Partner (Migrant) (subclass 100) visa (partner visa). The reasons for the Tribunal’s decision (TR) are published in BKRD v Minister for Immigration and Multicultural Affairs [2025] ARTA 1504.

FACTUAL BACKGROUND

2    The applicant is a citizen of the Republic of Sudan. He arrived in Australia in June 2006 as a 15 year old dependant relative on his stepmother’s partner visa. In November 2008, he was granted a permanent partner visa: TR [5].

3    The applicant has an extensive criminal record as an adult, including crimes of violence, possessing firearms and ammunition, dishonesty, drug possession, breaches of conditional liberty, destroying property and driving-related misconduct: TR [6]. On 12 December 2022, the applicant was convicted of several crimes, including attempted aggravated carjacking, which resulted in an aggregate sentence of three years and ten months’ imprisonment: TR [6].

4    On 24 March 2023, the applicant’s partner visa was cancelled pursuant to s 501(3A) of the Act: TR [7].

5    On 5 February 2025, the applicant was released from prison: TR [9].

6    The applicant has been issued a Class WR Bridging R (subclass 070) visa (BVR) with conditions: TR [9].

PROCEDURAL HISTORY

7    The applicant made a request to the Minister to revoke the mandatory cancellation of his partner visa. That request was refused on 16 October 2023. The applicant sought review of that decision in the Tribunal and the decision was affirmed on 5 January 2024. The applicant sought review of the Tribunal’s decision in this Court.

8    On 1 July 2024, the applicant applied for a protection visa. That application was refused on 7 January 2025 on the basis that the applicant was a danger to the Australian community. The applicant applied to the Tribunal for review of that visa refusal decision.

9    On 7 March 2025, this Court quashed the Tribunal’s decision in relation to the non-revocation of the cancellation of the applicant’s partner visa and remitted the matter back to the Tribunal for reconsideration.

10    In April 2025, the Tribunal, as reconstituted for the reconsideration of the non-revocation decision, made directions for the filing of any witness statements or other records and scheduled a three day hearing to commence on 8 July 2025. The applicant failed to comply with the directions for the filing of evidence.

11    Following a hearing in late May 2025, at which the applicant was represented, a differently constituted Tribunal in June 2025 set aside the refusal decision in relation to the applicant’s application for a protection visa and remitted the matter for reconsideration with a finding that the applicant was not a danger to the Australian community.

12    The applicant failed to appear when the Tribunal hearing for the review of the non-revocation decision commenced on 8 July 2025. Later on 8 July 2025, the Tribunal was informed that the applicant had required urgent medical assistance due to a burn injury to his hand. The applicant emailed a medical certificate.

13    The applicant appeared in person when the hearing resumed on 9 July 2025 but requested a further adjournment to explore the possibility of obtaining pro bono legal representation. The applicant’s request for a further adjournment was refused (see further at paragraph [16] below).

14    Following the hearing, on 18 July 2025, the Tribunal received an email from a law firm requesting an opportunity to provide “urgent and contained legal submissions” on behalf of the applicant “limited to legal matters and not encompassing further evidence”. The law firm was different from the firm that represented the applicant in relation to his protection visa application. The email specified the following:

In particular, we propose to address critical matters including the legal consequences of the decision including removal to a third country, and the impact of a bridging R (subclass 070) visa as opposed to a permanent visa on assessment of risk.

15    At a case management hearing held on 18 July 2025:

    The Tribunal observed that it had heard extensive oral testimony and taken over 1,000 pages of material into evidence during the hearing. The material included multiple statutory declarations from the applicant which had been prepared by lawyers and a report from a forensic psychiatrist.

    The applicant’s legal representative said to the Tribunal that legislative changes from late 2024 enlivened a risk of removal to a third country and the attendant risk of further immigration detention.

    The Tribunal observed that the applicant had given evidence about the impact of a BVR since his release and what the applicant saw as the benefits of his permanent partner visa being restored but had made no claims about possible re-detention or removal to a third country. The applicant’s legal representative said her submissions would strictly relate to a technical implication of the law and the threat and fear of removal and that “nothing further would need to be put to the [a]pplicant” as the submissions are not dependent on his views.

    The Minister expressed concern about whether the proposed submission would be founded on or supported by evidence.

    Having heard from both sides, the Tribunal granted leave for the applicant to provide written submissions by 25 July 2025, limited to five pages, “on the technical legal issue” raised “about possible re-detention and removal to a third country”. The Minister was to provide a reply by 1 August 2025, with a further hearing listed for 6 August 2025 “as a contingency measure”.

TRIBUNAL’S REASONS

16    The applicant’s request for a further adjournment was refused because the Tribunal considered (at TR [17]):

    The applicant had had notice of the hearing date since April 2025 and had not sought an adjournment prior to the hearing date.

    There was no evidence before the Tribunal of willingness of pro bono lawyers to act if an adjournment were granted.

17    The Tribunal observed that:

    Section 501(3A) of the Act obliged the Minister to cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full-time sentence of imprisonment. The character test is set out in s 501(6).

    Section 501CA(4) confers a discretionary power on the Minister to revoke the cancellation of a visa if the person whose visa has been cancelled makes representations in accordance with an invitation made under s 501CA(3), and the Minister is satisfied that the person either passes the character test or there is another reason why the cancellation should be revoked.

18    It was not in dispute before the Tribunal that the applicant did not pass the character test in s 501(6) of the Act. The issue for the Tribunal was whether there was “another reason” why the cancellation of the applicant’s partner visa should be revoked under s 501CA(4):  TR [26].

19    In determining that question, the Tribunal was required to comply with any written directions made by the Minister under s 499(1) concerning the performance of its functions or exercise of its powers under the Act: s 499(2A) of the Act. As the Tribunal acknowledged at TR [27], the applicable direction at the time of the Tribunal’s decision was ‘Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’.

20    The Tribunal set out the guiding principles contained in para 5.2 of Direction 110, the five primary considerations contained in para 8 of Direction 110 and the non-exhaustive list of other considerations provided for in para 9(1) of Direction 110: TR [29], [31]–[32]. The Tribunal also observed that para 7(2) of Direction 110 provided that Primary Consideration 1 – “Protection of the Australian Community” is generally to be given greater weight than other primary considerations, and that primary considerations generally should be given greater weight than the other considerations: TR [34].

21    The Tribunal considered that the applicant’s opinions in his oral testimony were “honestly held” but where the applicant’s recollections conflicted with contemporaneous records, the Tribunal preferred the contemporaneous records: TR [39]. The Tribunal summarised the applicant’s oral evidence at TR [40]–[41].

22    The Tribunal considered each consideration under Direction 110.

23    In relation to Primary Consideration 1 – “Protection of the Australian community” and the direction to consider the “nature and seriousness of the non-citizen’s conduct to date”, the Tribunal found (at TR [53]):

The totality of the Applicant’s offending and other misconduct is very serious.

24    The Tribunal then considered “the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”. The Tribunal observed that a “future-focused assessment” of the applicant’s recidivism risk was required by considering the nature of any harm and its probability: TR [56].

25    The Tribunal outlined the evidence in relation to the applicant’s remorse and rehabilitation (at TR [57]–[60]), conduct in custody and while on conditional liberty (at TR [61]–[63]), recidivism risk (at TR [64]), and protective factors (at TR [65]–[68]), before making the following findings (at TR [69]):

(1)    There is no evidence the applicant has relapsed into drug use or reoffended since his release in early 2025.

(2)    A repeat of the applicant’s violence or possession of weapons such as a handgun, has the potential to result in serious physical or psychological injury, or adverse psychological effects.

(3)    The applicant’s crimes and other misconduct are contextualised by persistent substance abuse, impulsiveness, and poor emotional regulation. His relatively recent expressions of remorse and undertaking to change the course of his life are diminished by the persistence of his crimes, poor engagement with rehabilitative opportunities in the past, and instances of custodial misconduct. He has completed some rehabilitative, vocational, and self-development courses since his imprisonment, but has unmet needs.

(4)    The conditions imposed by the applicant’s BVR, and the potentially severe consequences of breach, were also a relevant factor in the applicant’s law-abiding conduct since February 2025. The Tribunal was concerned about how the applicant might respond to future stressors and did not have before it any statements from the individuals the applicant had identified as providing him “protective effects”. Any “protective effects” had not previously assisted him in not reoffending.

26    The Tribunal concluded (at TR [70]):

The Applicant has an extensive criminal history contextualised by increasingly serious offences. His conduct in custody has not been consistently compliant and he has unmet rehabilitative needs. The Tribunal is unpersuaded that any abstinence from illicit drugs or law-abiding behaviour since conditional release in February 2025, supports a reliable conclusion that he has yet meaningfully changed the course of his life. He will remain on a BVR irrespective of the Tribunal’s decision in the present matter and is working on his rehabilitation in the community. The Applicant’s claim about constituting no risk of recidivism is uncorroborated and unpersuasive. Irrespective of the type of visa he holds, the Tribunal prefers the consensus view of experts, using different assessment methodologies, that the Applicant constitutes a moderate risk of violent reoffending. This is unacceptable and weighs substantially against revocation.

27    In relation to Primary Consideration 2 – “Family violence”, the Tribunal considered that the applicant had engaged in conduct falling within the meaning of family violence but accepted that he had undertaken some rehabilitation: TR [76]–[77]. The Tribunal concluded (at TR [78]):

On balance, this consideration weighs somewhat against revocation.

28    In relation to Primary Consideration 3 – “Ties to Australia”, the Tribunal concluded (at TR [86]):

The duration of the Applicant’s ties to Australia is almost two decades long, but the extent and strength of those ties is relatively weak. His claims about the strength of relationships is uncorroborated. Irrespective of the Tribunal’s decision, the Applicant will remain in Australia and there is no evidence from those he may be close to about impacts arising from the type of visa he holds. Notwithstanding the Applicant’s evidence that BVR conditions have very limited if any effect, the conditions he is subject to may have some impact, such that this primary consideration carries slight weight in favour of revocation.

29    In respect of Primary Consideration 4 – “The best interests of minor children in Australia”, the Tribunal considered that given its findings about recidivism risk and the absence of recent evidence about the applicant’s relationship with his children, the applicant’s parental aspirations were “speculative”: TR [92]. The Tribunal observed (at TR [92]) that “[t]here is also no evidence that BVR conditions impede[d] his efforts to re-kindle relationships”. On the speculative premise that the applicant could meaningfully change his life and his parental involvement is welcomed, the Tribunal concluded (at TR [93]):

On balance, this primary consideration carries only slight weight in favour of revocation.

30    In relation to Primary Consideration 5 – “The expectations of the Australian community”, the Tribunal considered that the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137 “casts a different light on this primary consideration”. The Tribunal observed (at [99]):

The Applicant was granted a BVR in early 2025 and released into the community. If the reviewable decision is affirmed, he will remain in the community on a BVR. If the reviewable decision is set aside, his permanent visa would be restored.

31    The Tribunal considered that the applicant had acted for a significant period in breach of the community’s reasonable expectation that non-citizens will act lawfully and not engage in conduct that harms others: TR [100]. The Tribunal concluded (at TR [100]):

On balance, the norm described as the expectations of the Australian community weighs substantially against revocation.

32    The Tribunal considered the Other Considerations set out in para 9(1) of Direction 110, beginning with (a) “legal consequences of the decision” the Tribunal proposes to make. The Tribunal observed (at TR [102]) that legal consequences can be “quite broad” and “encompass duration of detention and prospects of removal”: TR [102].

33    The Tribunal acknowledged that it was required to give “active intellectual consideration” to the applicant’s representations about risk of harm: TR [103]. The Tribunal summarised the applicant’s claims as follows:

    The applicant claimed that he feared being killed if he returned to Sudan: TR [104].

    The Tribunal noted that leave was granted to the applicant’s legal representative to make post-hearing submissions in relation to the prospect that the applicant will be re- detained and removed to a third country: TR [105]. The Tribunal recorded that the post-hearing submissions filed extended to topics in respect of which leave had not been granted, including the applicant possibly seeking voluntary return to Sudan, the effect of BVR conditions on the applicant’s ability to access supports such as public housing and his recidivism risk on a BVR versus a permanent visa: TR [106].

34    In relation to those post-hearing submissions that went beyond the scope of the leave granted, the Tribunal observed (at TR [106]):

The Direction is not framed to accommodate the different context arising from the NZYQ cohort and the Tribunal has earlier set out the evidence and its findings about risk in the context of what was advanced during the hearing. Attempting to assess differential risk based on post-hearing submissions about different visa types is speculative at best.

35    The Tribunal summarised the post-hearing submissions (at TR [107]–[109]) before making the following findings (at TR [110]):

    Given the recent protection visa decision in the applicant’s favour, he cannot be removed from Australia.

    Irrespective of the Tribunal’s decision, the applicant will remain in the community either under his previously cancelled partner visa (if the Tribunal decides to revoke the cancellation) or on the BVR issued to him in early 2025 (if the Tribunal decides to affirm the cancellation).

    The conditional nature of the BVR is “clearly more restrictive than the permanent visa he previously held” and there was “also a compliance burden and possible criminal prosecution if BVR conditions are breached.” The Tribunal observed that the applicant’s BVR conditions did not include curfew or remote monitoring conditions and the evidence during the hearing was that the applicant’s freedom of action was not meaningfully affected by a BVR and the applicant at hearing had not expressed concerns about the future consequences of breach. The applicant had stated that his daily reporting conditions had been incrementally eased.

36    The Tribunal made the following finding (at TR [111]) in relation to an immediate ongoing risk of removal:

The Tribunal does not accept that an affirmed decision results in ‘immediate and ongoing risk’ of detention, forcible removal, imposition of onerous conditions, lack of access to adequate supports, and the risk of losing visa status altogether. These are not direct legal consequences of the Tribunal’s decision and there is no evidence the Applicant will do anything other than remain in the community on a BVR for the foreseeable future. The Applicant referred during the hearing to stable accommodation and employment, linking up with a doctor to continue his [Opioid Replacement Therapy], attending a men’s group, being on a wait list for a drug / alcohol course and a place at Foundation House. He only referred to restoration of a permanent visa as enabling him to claim Centrelink payments if he became unemployed.

37    In relation to a removal to a third country, the Tribunal found (at TR [112]):

In terms of the submission that the Government ‘intends to remove … [the Applicant] … as soon as possible, likely to the Republic of Nauru’, there is no evidence of this and it is not a direct or reasonably proximate consequence of a decision in this matter.

38    The Tribunal accepted (at TR [112]) that there was an interim third country reception arrangement (interim arrangement) between Australia and the Republic of Nauru, that the applicant was not a member of the three-person cohort currently subject to it, and “there is no arrangement enlivening the Commonwealth’s power to do any of the things under s 198AHB in relation to the applicant”. The Tribunal considered that if removal was not a direct or reasonably foreseeable consequence of the Tribunal’s decision, then the likelihood of detention preparatory to removal was speculative.

39    The Tribunal considered that it was improbable that the applicant would voluntarily request removal to Sudan and there was no evidence that the Minister intended to quash the applicant’s protection finding at some indeterminate future point in time: TR [113].

40    The Tribunal noted multiple similarities between the post-hearing submissions filed on behalf of the applicant and submissions filed in another case concluded by the Tribunal on 31 July 2025 involving a different applicant and different facts: TR [114]. Some claims were identically advanced despite the entirely different factual matrix.

41    The Tribunal concluded (at TR [116]):

On balance, this consideration carries slight weight in favour of revocation, including because of uncertainty BVR holders experience compared to non-citizens on a permanent visa.

42    In relation to Other Consideration (c) “impact on Australian business interests”, the Tribunal observed that there was no evidence that a non-revocation decision would disrupt any business interests: TR [117]. The applicant would remain in the community irrespective of the Tribunal’s decision. Neutral weight was placed on this consideration.

43    In relation to Other Consideration (b) “extent of impediments if removed”, the Tribunal found that because of the protection finding in favour of the applicant, there was no current prospect that the applicant would be removed from Australia: TR [119]. The Tribunal considered this consideration to carry neutral weight.

44    In its conclusion, the Tribunal observed that the “post-hearing legal consequences” advanced on the applicant’s behalf were “somewhat disconnected from his oral testimony”: TR [125]. The Tribunal preferred the applicant’s oral testimony which was to the effect that the BVR conditions to which he is subject to have been incrementally eased since his release and that the applicant’s freedom of action is not meaningfully affected. The Tribunal did not accept that re-detention and removal were direct legal consequences of the Tribunal’s decision and there was no evidence that the applicant would not remain in the community on a BVR for the foreseeable future. There was also no evidence that future removal to a third country was a direct or reasonably proximate consequence of the Tribunal’s decision or that the applicant might elect voluntary removal in future or that, at some indeterminate future time, the Minister might quash the protection finding made in the applicant’s favour.

45    Ultimately, the Tribunal found that there was not “another reason” why the mandatory cancellation of the applicant’s partner visa should be revoked, because the three relevant primary considerations favouring non-revocation considerably outweighed the combined weight to be given to the countervailing primary and other considerations: TR [126].

STATUTORY CONTEXT

46    Section 501(3A) of the Act provides that the Minister must cancel a person’s visa if the Minister is satisfied that the person does not pass the character test and the person is serving a full-time sentence of imprisonment in a custodial institution. The character test is set out in s 501(6). A person does not pass the character test if they have a substantial criminal record. A substantial criminal record is defined in s 501(7) and includes having been sentenced to a term of imprisonment of 12 months or more.

47    Section 501CA of the Act empowers the Minister to revoke the cancellation decision made pursuant to s 501(3A) of the Act. Relevantly, the Minister may revoke the cancellation decision if the person whose visa is cancelled makes representations about revocation of the cancellation decision and the Minister is satisfied either that the person satisfies the character test or there is “another reason” why the cancellation decision should be revoked.

48    Section 499 of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act in respect of the performance of those functions or the exercise of those powers, and a person or body must comply with any such directions. At the time of the Tribunal’s decision, Direction 110 was in force.

49    Section 198AHB applies if the Commonwealth enters into an arrangement (third country reception arrangement) with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country. Under s 198AHB, the Commonwealth may, amongst other things, take or cause to be taken, any action (not including exercising restraint over the liberty of a person) in relation to the third country reception arrangement or the third country reception functions of the foreign country.

50    Section 76AAA provides that subject to certain disqualifying criteria, a BVR ceases to have effect in circumstances where the non-citizen is granted permission by a foreign country to enter and remain in that country and that foreign country is a party to a third country reception agreement.

GROUNDS OF REVIEW

51    The further amended originating application dated 20 April 2026 raises four grounds of review.

52    By Ground 1, the applicant alleges that the Tribunal erred by asking itself the wrong question, or reasoned irrationally, or failed to give proper consideration to a submission of the applicant in relation to the assessment of the risk to the Australian community by failing to compare the risk posed to the community if the applicant remained in the Australian community on a BVR with the risk posed to the community if he remained in the Australian community on a permanent partner visa.

53    By Ground 2, the applicant alleges that the Tribunal erred in that its assessment of the legal consequences of the decision to affirm was illogical or irrational. Alternatively, the applicant alleges that he was denied procedural fairness or the Tribunal’s task was impaired by incorrect or misleading submissions made by the Minister regarding the prospects of removal to Nauru.

54    By Ground 3, the applicant alleges that the refusal to adjourn the hearing at the applicant’s request so that legal representation could be obtained was unreasonable.

55    By Ground 4, the applicant alleges that he was denied procedural fairness by the Tribunal and the Minister discussing “material and substantive issues” in the absence of the applicant.

SUBMISSIONS OF THE PARTIES

Ground 1 – Assessing risk to the Australian community

Applicant’s submissions

56    The applicant contends that, given he held a BVR and the Tribunal found that the applicant would remain in the Australia community regardless of the outcome of the Tribunal’s review, an assessment of Primary Consideration 1 – “Protection of the Australian community” requires a comparison of the risk to the community of affirming the decision under review with the risk of setting aside the decision: DVRL v Minister for Immigration and Citizenship [2025] FCA 876 (Bromwich J), Minister for Immigration, Citizenship and Multicultural Affairs v KFTJ [2026] FCAFC 52 (Perry, Kennett and Shariff JJ) and GNHW v Minister for Immigration and Citizenship (No 2) [2025] FCA 1578 (Logan J).

57    The applicant had contended in written submissions that the Tribunal failed to undertake this comparison and thereby asked itself the wrong question or engaged in irrational or illogical reasoning. At hearing, the ground was narrowed to the Tribunal engaging in irrational or illogical reasoning by failing to explain how the risk to the Australian community weighed substantially against revocation, when the applicant would remain in the community irrespective of the type of visa he held. It was accepted at hearing that the Tribunal had engaged in the evaluative task but had reasoned illogically.

58    As developed in the oral submission, the first strand of ground 1 involves the applicant seeking to challenge the Tribunal’s conclusion that Primary Consideration 1 weighs substantially against revocation of the cancellation of his partner visa as being based on irrational reasoning and is therefore legally unreasonable.

59    The applicant contends that having found that there was no difference in the risk to the community irrespective of the type of visa held by the applicant, the logical conclusion was that the matter of risk carried neutral weight and that, if the Tribunal was to depart from that conclusion, it needed to give a cogent explanation of its reasoning. The applicant submits that as drafted, the Tribunal’s reasons suggest that the Tribunal has considered that once it was satisfied that the applicant poses a high enough risk, the consideration of the protection of the Australian community favours not granting a partner visa. That was said to amount to irrational reasoning.

60    By the second strand of ground 1, the applicant contends that in post-hearing submissions lodged with the Tribunal, the applicant had expressly drawn the Tribunal’s attention to the fact that a comparative risk assessment was required and that the protection of the Australian community would be best served if his permanent partner visa was reinstated, giving him stability and access to key supports, compared with the insecurity and inability to access key supports on a BVR if the decision was affirmed. Alternatively, the applicant had submitted to the Tribunal that there was marginal or doubtful utility in protecting the community by affirming the decision, given the applicant would remain in Australia either way.

61    The applicant contends that the Tribunal failed to understand or evaluate those submissions and thereby failed to give the submissions “proper consideration”.

62    The applicant submits that if the Tribunal had properly compared the risk to the Australian community posed by the two outcomes open to the Tribunal on review, it could have found that the consideration under para 8.1(2)(b) of Direction 110 weighed less heavily in favour of affirming the non-revocation decision, that it weighed neutrally, or that it weighed in favour of revocation, which in turn could realistically have led to a different outcome. Therefore, the error was material to the decision: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [15] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

Minister’s submissions

63    The Minister submits that the Tribunal’s reasoning was not made in ignorance of the fact that the applicant would either remain in Australia on a permanent partner visa or on a BVR, and the Tribunal was aware that unlike the applicant’s cancelled partner visa, a BVR was not permanent. In those circumstances, the Minister submits that there is no irrationality or unreasonableness in the Tribunal concluding that the non-revocation of the cancellation of the applicant’s permanent partner visa promoted the protection of the Australian community: XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115; (2025) 311 FCR 539 (Wheelahan, Stewart and Needham JJ); Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45 (Perry, Kennett and Shariff JJ).

64    In relation to the alleged failure by the Tribunal to consider the applicant’s post-hearing submission concerning the assessment of risk to the Australian community, the Minister submits that:

(1)    The applicant’s post-hearing submissions exceeded the scope of the leave that the Tribunal had granted, and that this argument is therefore misconceived. The Minister contends that it is impermissible for a party to file submissions without the grant of leave. The Tribunal granted leave to file five pages of post-hearing submissions, confined to the technical legal implications arising from a prospect of removal to a third country. However, the post-hearing submissions contained submissions about the effect of the BVR conditions on the applicant’s ability to access supports such as public housing in different Australian states and his recidivism risk on a BVR as opposed to a permanent partner visa.

(2)    The post-hearing submissions concerning the impact of the BVR conditions on the applicant were not consistent with the evidence that had been given by the applicant during the hearing.

Submissions following the hearing before the Court

65    Following the hearing before the Court, the Full Court handed down its decision in Minister for Immigration and Citizenship v DVRL [2026] FCAFC 73 (DVRL 2026) (Perry, Stellios and Lenehan JJ). The parties were invited by the Court to file short written submissions addressing that decision. The Court considered those submissions.

66    The applicant submits that the Full Court’s decision in DVRL 2026 supports Ground 1 of his review. The Full Court held that in cases where a non-citizen may remain in the Australian community, regardless of whether a visa is refused or cancelled, Direction 110 requires the decision-maker (here, the Tribunal) to conduct a comparison of the competing risks associated with each available outcome (here, the risk to the Australian community if the applicant’s permanent partner visa was reinstated compared to the risk to the Australian community if the applicant were on a BVR): DVRL 2026 at [82].

67    The applicant relies on [88] of the Full Court’s reasons (original emphasis):

Where a person relevantly affected by NZYQ does not advance a positive case that the risk to the community would be reduced if a visa were granted – and where it appears from the material before the Tribunal that they will be in the Australian community for some time regardless of the decision – it may well be the case that the Tribunal is simply unable to reach a state of satisfaction that either decisional outcome makes much difference in terms of risk: see eg Plaintiff M64/2015 v Minister of Immigration and Border Protection (2015) 258 CLR 173, 196-197 [64] (Gageler J). But that conclusion may in itself be significant: it may tend to suggest that those matters bearing upon risk are of lesser weight, or even “neutral”, for the purposes of weighing the various evaluative factors required by the Direction. In any event, there is no doubt that DVRL advanced a case that granting him a protection visa would reduce the risk to the Australian community, so any differences between my views and those of the primary judge are most likely immaterial here.

68    The applicant submits that because the Tribunal reasoned that there was a moderate risk of violent reoffending irrespective of the type of visa the applicant holds, it was illogical or irrational to conclude that the risk “weighs substantially against revocation”.

69    The Minister submits that in the present case, the Tribunal had a rational basis upon which to conclude that the protection of the Australian community was a consideration which weighed “substantially” against revocation because one visa was permanent whilst the other was temporary and rendered the applicant liable for removal, if and when removal was practicable. Nothing in the Full Court’s decision in DVRL cut across the rationality of that reasoning or undermined the force of the reasoning of the Full Court in XKTK.

Ground 2 – Risk of removal

Applicant’s submissions

70    First, the applicant submits that he was denied procedural fairness, or that the Tribunal was impaired in its ability to consider submissions about the applicant’s vulnerability of removal to Nauru, because the Minister misled the Tribunal as to the true nature of the third country reception arrangements with Nauru.

71    The applicant submits that the Minister’s characterisation of the status of Australia’s interim arrangement with the Republic of Nauru, and submission that the applicant was not a member of the three-person cohort currently subject to it, was misleading because:

(1)    The terms of the interim arrangement with Nauru entered into in February 2025 were of general application and not limited to a specific person or class of persons. The Minister was aware that the arrangement contemplated a process for requests and acceptance. Although the applicant was not one of the three members of the first cohort to be resettled under the interim arrangement, he remained “within the ambit” of the interim arrangement and therefore was allegedly “vulnerable to removal to Nauru at any time”.

(2)    The Minister was “well aware” that a further agreement with Nauru was imminent at the time of making submissions to the Tribunal. The “finalised arrangement” with Nauru was announced on 29 August 2025, seven days after the Tribunal’s decision.

72    The applicant submits that proceeding on misleading submissions by the Minister had been found to give rise to jurisdictional error in GNHW.

73    Second, the applicant submits that the Tribunal’s reasoning in dismissing his post-hearing submissions was irrational. The applicant had submitted to the Tribunal, supported by evidence, that the Minister had declared an intention to remove people in the applicant’s position (namely members of the NZYQ cohort holding BVRs) from Australia as soon as possible, likely to Nauru. The Tribunal had irrationally rejected that submission on the basis that it was not supported by evidence.

Minister’s submissions

74    First, the Minister contends that there is no denial of procedural fairness because:

(1)    The terms of the interim arrangement were publicly available. TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 (Moshinsky J) was published in its redacted form on 2 June 2025, while the applicant’s post-hearing submissions were dated 25 July 2025. TCXM reproduced the entirety of the interim arrangement.

(2)    The Minister’s submissions about the interim arrangement with Nauru were not misleading. The Minister’s view had consistently been that the interim arrangement was limited to three persons. The Minister had disclosed to the Tribunal that the Commonwealth was negotiating a further third country reception arrangement with Nauru but the agreement had not yet been finalised and it would be inappropriate for the Tribunal to assess the likelihood of that agreement being finalised. The submissions that had been made in GNHW were different.

75    Second, the Minister submits that the Tribunal did not act irrationally in dismissing the applicant’s post-hearing submission about the intention to remove the applicant to Nauru because:

(1)    The applicant’s case relies on factual assertions made by the applicant’s legal representative in post-hearing submissions, which exceeded the grant of leave. It would have been unfair for the Tribunal to have regard to this evidence, when the Minister had no right to respond with evidence and did not do so.

(2)    The Tribunal’s reason for rejecting the submission was that not only was there no evidence, removal was not a direct or reasonably proximate consequence of its decision. That second reason remains correct irrespective of any error relating to whether there was evidence of an intention to remove the applicant. There was a logical and probative basis for rejecting the applicant’s post-hearing submission.

Ground 3 – Adjournment refusal

Applicant’s submissions

76    The applicant submits that the Tribunal’s failure to adjourn the hearing in response to the applicant’s request made on 9 July 2025 was unreasonable. The Tribunal refused the request for adjournment because there was no evidence that pro bono legal representation could be secured if the applicant’s request was granted: TR [17].

77    The applicant contends that:

(1)    The fact that the applicant had pro bono assistance in the protection visa proceeding before a differently constituted Tribunal was prima facie evidence that the applicant could secure pro bono assistance in the present case.

(2)    The Tribunal took no steps to enquire with the applicant’s pro bono practitioners acting in the protection visa review before the Tribunal, to determine whether they would be prepared to act for, or assist him, to secure alternative pro bono representation.

(3)    There was no pressing urgency to conclude the review: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [80] (Hayne, Kiefel and Bell JJ).

Minister’s submissions

78    The Minister submits that there was no unreasonableness in the Tribunal’s refusal to adjourn the hearing because the applicant had been on notice of the hearing date for nearly three months and never provided any indication to the Tribunal that lawyers in a different review would represent him in the present matter. The Minister also contends that it was not incumbent on the Tribunal, in order to make a jurisdictionally sound decision, to inquire of the applicant’s legal representatives in a different matter whether they would assist the applicant in the present matter.

Ground 4 – Discussions in the absence of the applicant

Applicant’s submissions

79    When the hearing commenced on 8 July 2025, the applicant was not in attendance. The reason for non-attendance was not known by the Tribunal or the Minister. Following a discussion about the options open to the Tribunal – namely, proceeding in the absence of the applicant, dismissing the application, adjourning the hearing or proceeding to decide the matter without an oral hearing – the Tribunal decided to adjourn the hearing to the following day.

80    The applicant contends that despite having decided to adjourn the hearing, the Tribunal proceeded to “discuss matters of substance” with the Minister, in the absence of the applicant. These matters included (but were said to be not limited to) the age the applicant commenced offending, records of offending for which no convictions had been recorded, results of drug tests and what those results suggested about the applicant’s use of illicit drugs, whether there was any indication of family violence, the extent of rehabilitation undertaken by the applicant, the applicant’s relationship with his minor children and doubts about the paternity of one of the children. The Tribunal was also said to have raised with the Minister the issue of the impact of the High Court’s decision in NZYQ.

81    First, the applicant submits that there was a denial of procedural fairness because of a breach in the hearing rule. Had the applicant been aware of the matters that were discussed between the Tribunal and the Minister and been aware of the significance either the Tribunal or the Minister placed on those matters, he may have made submissions about them.

82    Second, the applicant submits that the discussion of substantive issues between the Tribunal and the Minister gave rise to a reasonable apprehension of bias. The applicant contends that a fair-minded lay observer might apprehend that the Tribunal’s identification of the issues and interpretation of the evidence, and the preparation of the Minister’s case that would be run over the following two days, were impacted by the discussion between the Tribunal and the Minister. In turn, a lay observer might apprehend that those matters might have affected the way the Tribunal approached and determined the review.

Minister’s submissions

83    First, the Minister submits that there was no denial of natural justice because s 81 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides that “[t]he Tribunal may proceed with a Tribunal case event that relates to a proceeding in the absence of a party to the proceeding if the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event”. A “Tribunal case event” includes “the hearing, or part of the hearing, of the proceeding”: s 4(a) of the ART Act. The part of the hearing that occurred on the first day was a “Tribunal case event”.

84    Second, the Minister submits that there was no denial of procedural fairness because the applicant was given a reasonable opportunity to present his case. As the applicant did not appear on the first day of the hearing, it is not unsurprising that the Tribunal would discuss with the Minister about how to proceed, including by discussing relevant issues for determination by the Tribunal.

85    Third, the Minister contends that there was no denial of procedural fairness because each of the issues discussed between the Tribunal and the Minister was put to the applicant during the hearing, except for his non-conviction offending which the Minister indicated he did not rely upon.

86    Fourth, the Minister submits that there is no basis for concluding that the discussion between the Tribunal and the Minister gives rise to a reasonable apprehension of bias. The Minister contends that a reasonable fair-minded lay observer would understand that the Tribunal was considering exercising a power to determine the review in the absence of the applicant because the applicant had not appeared at the hearing and the discussion concerned the issues requiring resolution in exercising that power. The Minister contends that the mere fact that there was a discussion about relevant issues did not give rise to an apprehension of bias. That discussion did not suggest a prejudgment. The Tribunal was identifying to the Minister that he had not had sufficient time to consider the material and raised issues for the Minister to address the following day.

CONSIDERATION

Ground 1

87    The applicant challenges the Tribunal’s consideration of Primary Consideration 1. The essential target of the applicant’s challenge is the last few sentences of TR [70] and TR [105]–[106] where the Tribunal, relevantly, states:

[70]     … [The applicant] will remain on a BVR irrespective of the Tribunal’s decision in the present matter and is working on his rehabilitation in the community. The Applicant’s claim about constituting no risk of recidivism is uncorroborated and unpersuasive. Irrespective of the type of visa he holds, the Tribunal prefers the consensus view of experts, using different assessment methodologies, that the Applicant constitutes a moderate risk of violent reoffending. This is unacceptable and weighs substantially against revocation.

…

[105]      … the Tribunal gave leave for [the Applicant’s legal representative] to make post-hearing submissions limited to five pages on…the prospect that the Applicant will be re-detained and removed to a third country. [The Applicant’s legal representative] filed submissions that were six pages long, in Times New Roman 10.5 font, and with 45 footnotes containing hyperlinks to websites and online documents. Topics covered include those for which leave was granted, but also submissions about the Applicant possibly seeking voluntary return to Sudan, the effect of BVR conditions on his ability to access supports such as public housing in different Australian states, and his recidivism risk on a BVR versus a permanent visa.

[106]    [The Applicant’s legal representative] was not granted leave to makes [sic] submissions about recidivism risk or how this might be affected by the two counterfactuals she advances relating to different visa types. The Direction is not framed to accommodate the different context arising from the NZYQ cohort and the Tribunal has earlier set out the evidence and its findings about risk in the context of what was advanced during the hearing. Attempting to assess differential risk based on post-hearing submissions about different visa types is speculative at best.

88    The considerations provided for in Direction 110 are relevant considerations in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (Gibbs CJ, Mason, Brennan, Deane and Dawson JJ) because s 499 of the Act requires the Tribunal to comply with that direction in exercising power under s 501CA of the Act. A failure to take into account a relevant consideration is a jurisdictional error. If the Tribunal failed to understand the requirements of Primary Consideration 1 and that error was material, the Tribunal would have fallen into jurisdictional error.

89    By its terms, Primary Consideration 1, as provided for in Direction 110, requires a decision-maker to have regard to the following elements:

(1)    The safety of the Australian community is the highest priority of the Australian Government.

(2)    The principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.

(3)    A retrospective or hindsight examination of the nature and seriousness of the non-citizen’s conduct to date.

(4)    A prospective or forecast assessment of the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

90    Direction 110 was not framed in a way that expressly contemplates the NZYQ cohort: DVRL 2026 at [53]. The Full Court in DVRL 2026 held that in so far as the assessment of risk to the Australian community is concerned, in the case of a non-citizen who is a member of the NZYQ cohort, Direction 110 requires the Tribunal to undertake a differential risk assessment which involves a comparison of the risk to the Australian community should the applicant remain in the community on a BVR, as opposed to being in the Australian community on the cancelled permanent visa.

91    Here, what is required is an evaluation of the competing risks and mitigations of the risk which flow from the applicant’s presence in the community under each of the visa types: the permanent partner visa (should the cancellation of that visa be revoked) and the BVR which has been issued to the applicant.

92    As the Tribunal’s reasons disclose at TR [70], the Tribunal in this case assessed the applicant as constituting a moderate risk of violent reoffending “irrespective of the type of visa he holds”. In other words, as the applicant accepted at hearing, the Tribunal did in effect undertake a comparison of the risk under each type of visa and concluded that the type of visa (BVR or permanent partner visa) did not change its assessment of risk of reoffending as being moderate.

Irrational reasoning

93    A finding of legal unreasonableness is not readily drawn: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] (Kiefel CJ), [52] (Gageler J) and [135] (Edelman J); Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[135] (Crennan and Bell JJ); Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [29]–[35] (Allsop CJ, Besanko and O’Callaghan JJ).

94    In Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCASJ 42; (2024) 99 ALJR 387 at [27], Steward J explained (emphasis added):

The contention that a finding is unreasonable or irrational is not made out by disagreeing with the merits of a finding; even strong disagreement is insufficient. It is also not made out by mistaken reasoning. It requires the presence of irrational or illogical reasoning or processes or outcomes. Irrational or illogical reasoning is not poor or very poor reasoning; it is reasoning which does not – in any way – make sense; it is reasoning which completely offends logical thinking. The same applies to unreasonable or irrational outcomes. Such reasoning or outcomes arise on only the rarest of occasions.

95    As the explanation given by Steward J makes apparent, there are two aspects to legal unreasonableness. One is legal unreasonableness that is reflected in and evidenced by an illogical outcome. The second is legal unreasonableness that is reflected in illogical reasoning.

96    It is the second form of unreasonableness that is relevant to the present case. The applicant’s contention is that having found that the applicant would remain in the community and that he would represent a moderate risk of violent reoffending irrespective of the type of visa he holds, it is not logical to conclude that the risk to the Australian community weighs substantially in favour of maintaining the cancellation of his permanent partner visa.

97    The observations made by the Full Court in obiter in DVRL 2026 at [88] are not to be understood as prescribing the reasoning which must be adopted by the Tribunal in every case involving a member of the NZYQ cohort nor as dictating to the Tribunal the conclusion that must be reached in performing its evaluative task. As the Full Court in DVRL 2026 recognised at [62]:

Direction 110 repeatedly emphasises that decision-making under ss 501 and 501CA of the Act is inherently individualised. Neither the primary considerations nor the other considerations apply automatically or uniformly. Rather, the relevance of a consideration and the weight to be attributed to it depend on the facts and circumstances of the particular case.

98    A conclusion as to irrational reasoning amounting to legal unreasonableness requires a close examination of the Tribunal’s process of reasoning in each case, having regard to the totality of its reasons. As the Full Court observed in KFTJ (at [43]), because unreasonableness and irrationality are evaluative and fact-specific inquiries, similarities and differences between the reasoning expressed by a decision-maker in different cases are not themselves determinative.

99    For the following reasons, the Tribunal’s reasoning in the present case was not illogical or irrational such as to constitute legal unreasonableness.

100    The Tribunal’s reasons disclose that the Tribunal was acutely aware that:

    The applicant would remain in the community irrespective of the decision to be made by the Tribunal: TR [70], [86], [99], [110]–[111], [117], [124]–[125].

    The consequence of the cancellation of the applicant’s permanent partner visa was to replace that visa with one that was less certain and subject to conditions: TR [110], [116].

    The applicant’s BVR was subject to conditions that placed some restrictions on the applicant and were a relevant factor in his law-abiding conduct: TR [69(d)].

101    In the present case, it is apparent from the Tribunal’s reasons that the Tribunal appreciated that the applicant’s BVR has two significant features that were not shared by the applicant’s cancelled partner visa:

(1)    The BVR, by its nature, contemplates the possible removal of the holder at a future time.

(2)    The BVR was liable to conditions, including precluding the applicant from engaging in activities disruptive to the Australian community, requiring the applicant to report in daily (by telephone), notifying the immigration authorities of his residential address, precluding the applicant from acquiring weapons and precluding the applicant from contacting victims of his violent offences.

102    The Full Court’s observations in DVRL 2026 in obiter at [88] that a conclusion that neither “decisional outcome makes much difference in terms of risk …. may in itself be significant” because “it may tend to suggest that those matters bearing upon risk are of lesser weight, or even “neutral”, for the purposes of weighing the various evaluative factors required by [Direction 110]” may be more readily applicable where the risk of reoffending and the risk to the Australian community have been assessed at the lower end of the spectrum. Where the Tribunal has expressed its assessment of risk by reference to a band (such as moderate), and a non-citizen has been assessed as lying within a band of moderate risk of violent reoffending, it is not necessarily irrational for the Tribunal to reason that any features of a BVR that might reduce the risk to the Australian community, even if it is not sufficient to take the risk outside of a band, weigh against the reinstatement of a non-citizen’s permanent visa which does not have those protective attributes.

103    In the present case, the applicant’s contention ignores the Tribunal’s recognition of those attributes of a BVR that are calculated to offer at least some measure of protection to the Australian community – namely, cancellation if removal from Australia becomes reasonably practicable and conditions directed to addressing risk, such as prohibiting the applicant from possessing a weapon or contacting victims of his prior violent offending.

104    By its very nature, the BVR complements the object of cancellation of the visa of a person who fails the character test by rendering the person liable to be removed from Australia. The High Court in Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378 at [27] (Gageler CJ, Edelman and Jagot JJ) explains how the attributes of a BVR may mean that it is not necessarily inconsistent to weigh the expectations of the Australian community as being in favour of the cancellation of a visa that permitted a non-citizen to unconditionally remain in Australia, notwithstanding that the same non-citizen would be granted a BVR with mandatory conditions and which ceases to have effect should removal become reasonably practicable:

Nor is there any inconsistency between that evaluation and the delegate’s recognition that the plaintiff would be in the Australian community for so long as there was no real prospect of removal of him from Australia becoming practicable in the reasonably foreseeable future. Paragraph 8.5(2) [of Direction 110], in saying that “the Australian community would expect that the person should not be granted or continue to hold a visa”, must be understood in context. It is plain from the context that the “visa” being referred to in this sentence, in the case of a visa that has been subject to mandatory cancellation, is the visa that permitted the non-citizen to remain in Australia – such as, in the plaintiff’s case, the TPV. The reference is not to the BVR, which includes mandatory conditions regulating the plaintiff's conduct and which ceases by operation of s 76AAA of the Migration Act once removal of the non-citizen from Australia is reasonably practicable because of a third country granting the non-citizen a right to enter and remain in that country.

105    As the High Court’s reasoning in Plaintiff S22/2025 demonstrates, there is no necessary inconsistency in cancelling a visa that granted the non-citizen a right to remain in Australia in circumstances where the non-citizen will remain in Australia but on a visa that is designed to facilitate removal when practicable.

106    It is the nature of a BVR that it is effective during a specified period or until a specified event happens: XKTK at [21]. As Wheelahan J explained in XKTK (at [30]), the purpose of cancelling the visa of a non-citizen who does not pass the character test is to ensure that that person is liable to be removed from Australia. It is in furtherance of that purpose that cancellation of a visa operates on the status of a non-citizen (rendering them unlawful non-citizens) and is a necessary step towards achieving removal. The purpose of cancellation may be met even though removal from Australia may not be reasonably practicable at the time of making the decision to cancel (or not to revoke the cancellation of) a visa: XKTK at [18]; ZTBL v Minister for Immigration and Citizenship [2026] FCAFC 48 at [89] (Markovic, Hespe and Needham JJ).

107    The conditions imposed on the applicant’s BVR regulate his presence in Australia. The Tribunal observed (at TR [40(o)]):

The Applicant said his BVR conditions since release have been amended from daily to weekly and, in June 2025, to monthly reporting. He needs to keep authorities updated about changes to his contact details, address, email, employment, and ‘anything else that changes’. He does not find it difficult to comply with BVR conditions, which do not affect his ability to work, engage with family or friends, or other aspects of his life.

108    The Tribunal found (at TR [67]) that the conditions of the applicant’s BVR, and the potentially severe consequences of breach, had promoted the applicant’s law-abiding conduct since February 2025. In the circumstances of this case, although the Tribunal concluded that the risk of the applicant’s violent reoffending was moderate irrespective of the type of visa he held, the Tribunal also made a finding that the conditions imposed by the applicant’s BVR had a protective effect.

109    The applicant referred to the decisions of DVRL and KFTJ to support the contention that the Tribunal reasoning was illogical or irrational. For present purposes, it is sufficient to observe that:

    In DVRL (upheld by the Full Court in DVRL 2026), unlike in the present case, the Court found that the Tribunal did not ask whether the level of risk if the applicant remained on a BVR was higher than the risk posed if the protection visa was granted.

    In KFTJ, the Full Court was dealing with circumstances in which the non-citizen had not been issued a BVR and the Minister’s reasons, read in the factual circumstances of that case, disclosed that the Minister had directed the potential issue of a BVR to be considered by a delegate (rather than by him personally) and therefore the Minister was not proceeding on the basis that he would decide what visa (if any) should be issued and what its conditions should be. On the face of the documents, including the submission and statement of reasons, the Minister had no basis for an assumption that the non-citizen would be subject to visa conditions that would serve to protect the community. In the present case, as the Tribunal’s reasons record, the applicant had in fact been issued with a BVR with a number of conditions.

110    When read as a whole, the Tribunal’s reasons demonstrate its awareness and appreciation that while the applicant would remain in the community and would continue to pose a moderate risk of violent reoffending even if the cancellation of his permanent partner visa were not revoked, the cancellation of his permanent partner visa resulted in the applicant holding a BVR, thereby ensuring that the applicant remained liable to be removed if and when it became reasonably practicable to do so. If his permanent partner visa were reinstated, the applicant would, on the Tribunal’s assessment, continue to pose an unacceptable risk to the community, without being liable to removal. In these circumstances, the fact that the Tribunal concluded that, irrespective of the type of visa he held, the applicant constituted an unacceptable risk to the community does not demonstrate that the Tribunal engaged in illogical or irrational reasoning in concluding that the risk to the Australian community weighed substantially against the revocation of the cancellation of the applicant’s permanent partner visa.

111    Read in their entirety, any criticism that might be made of the Tribunal’s reasons in the present case do not meet the high threshold required to show legal unreasonableness.

Failure to consider an argument or submission put by the applicant

112    As the High Court made clear in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 (Kiefel CJ, Keane, Gordon and Steward JJ), where it is part of the Tribunal’s review task to consider the representations made by the applicant, the Tribunal discharges this task by reading, identifying, understanding and evaluating the representations.

113    The applicant contends that the Tribunal failed to perform this part of its review task. This requires a consideration of the contentions and materials put by the applicant to the Tribunal.

114    The applicant contends that in post-hearing submissions submitted to the Tribunal, the applicant relevantly made three submissions relating to the protection of the Australian community that were not addressed by the Tribunal in its reasons:

    A comparative risk assessment was required in evaluating Primary Consideration 1; and

    The protection of the Australian community would be best served if the applicant’s permanent partner visa was reinstated, giving him stability and access to key supports, compared with the insecurity and inability to access key supports on a BVR if the decision was affirmed; and

    Alternatively, the applicant had submitted to the Tribunal that there was marginal or doubtful utility in protecting the community by affirming the decision, given the applicant would remain in Australia either way.

115    As explained above, the Tribunal did assess the risk to the Australian community having regard to the fact that the applicant would remain in the community. The Tribunal’s conclusion was that the type of visa did not alter the overall level of risk posed by the applicant which remained a moderate risk of violent reoffending.

116    As the High Court explained in Plaintiff M1 (at [25]), what is necessary for a decision-maker to comply with the statutory requirement to engage with submissions in order to validly exercise its power will necessarily depend on the nature, form and contention of the representations.

117    This is not a case where the applicant asserts that the Tribunal failed to consider the submissions made in response to the invitation which the Minister was obligated to afford the applicant following the mandatory cancellation of the applicant’s partner visa. The post-hearing submissions that were filed by the applicant exceeded the scope of the leave that had been granted to file those submissions.

118    The Tribunal did not proceed on the basis that it had not read or understood the applicant’s post-hearing submissions. The Tribunal’s reasons record the relevant content of those submissions at TR [105]–[109] and in particular at TR [109(b)] which records (emphasis added):

[The Applicant’s legal representative] contends the Applicant’s recidivism risk is directly impacted by the type of visa he holds:

There is no probative connection established between the conditions imposed on [the Applicant’s] BVR and risk to the community. [The Applicant] remains subject to the same criminal law and public protections as any other person residing in the community. However, as a BVR holder, he receives substantially fewer supports, particularly with respect to housing and healthcare.

Accordingly, the result of decision to affirm is not rationally connected with enhancement of the protection of the Australian community. Non-revocation will, if anything, perpetuate [the Applicant’s] instability, poor health and lack of access to supports, based especially on liminality and fear of detention and removal, thereby tending to a negative impact on the community. The Tribunal should so find.

…

Taking into account the foregoing, the Tribunal should find that the protection of the community is best served by [the Applicant] holding a permanent visa. Alternatively, the Tribunal should find that there is a low risk of [the Applicant] offending, including on the basis of existing assessments, and there is “marginal or doubtful utility” of non-revocation and so the consideration weighs against grant of the visa but only to a low degree.

119    The Tribunal observed (at TR [114]) that the applicant’s post-hearing submissions were generic in nature and closely resembled the submissions filed in another proceeding in relation to a different applicant with different facts and circumstances. That the post-hearing submissions were not directed to the specific circumstances of the applicant’s case rationally affected the Tribunal’s level of engagement with those post-hearing submissions. The Tribunal’s approach in this respect was consistent with its review function.

120    It is now well established that it may be that it is unnecessary for a decision-maker to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (French, Sackville and Hely JJ).

121    The Tribunal did not directly address the submission that the protection of the Australian community would be best served by the applicant holding a permanent partner visa because the Tribunal explicitly rejected the premise of that submission. The Tribunal did not accept that the BVR and the conditions it imposed had the degree of impact on the applicant which the post-hearing submissions ascribed: TR [111]. The Tribunal preferred the evidence given by the applicant to the Tribunal at the hearing that he did not find difficulties in complying with the BVR conditions. The Tribunal was willing to accept that the conditions on his BVR may have some negative impact on the applicant, notwithstanding the applicant’s evidence that the BVR conditions have very limited, if any, negative impact on him: TR [86]. During the hearing, the applicant had referred to stable accommodation and employment and linking up with a doctor. The applicant’s only reference to the benefit of restoring his permanent partner visa was that it would enable him to claim Centrelink payments if he became unemployed: TR [111].

122    The alternative submission, as put to the Tribunal in post-hearing submissions, was that there was marginal utility in affirming the cancellation decision. This submission was premised on a contention that the Tribunal ought to find that there is a low risk of the applicant reoffending. The Tribunal did not need to directly address the alternative submission because it had made a finding that there was a moderate risk of violent reoffending.

123    Ground 1 of the review is not made out.

Ground 2

124    Ground 2 concerns submissions made to the Tribunal concerning the risk faced by the applicant of removal to a third country.

125    The applicant in post-hearing submissions filed on 25 July 2025, submitted to the Tribunal that he faced a threat of removal to Nauru if the cancellation decision was not revoked. The Tribunal records the submission in the following terms (at TR [109(e)]):

[The Applicant’s legal representative] submitted that the ‘government intends to remove…[the Applicant]…as soon as possible, likely to the Republic of Nauru’. Should that occur, it is claimed ‘[T]here are no protections against that third country refouling him to Sudan, detaining him indefinitely or otherwise unlawfully, or otherwise persecuting him’. [The Applicant’s legal representative] cited media materials and other documents in footnotes regarding Australia’s negotiations with Nauru, Nauruan law, demographic information, and reported circumstances in Nauru, which the Tribunal has considered. Some are quite dated, such as a report by Amnesty International dated 2016. [The Applicant’s legal representative] conceded that there have been no successful challenges so far to the legality of the Federal Government’s negotiation of third country reception arrangements with Nauru.

126    Before the Tribunal and in response to this submission, the Minister submitted that removal of the applicant to a third country such as Nauru was not an immediate, direct or likely consequence of the Tribunal’s decision: TR [109(f)]. More particularly, the Minister submitted to the Tribunal that:

    Entry into a third country reception arrangement is not a statutorily prescribed consequence of a decision by the Tribunal to affirm the decision under review.

    There was no existing arrangement enlivening the Commonwealth’s power to do any of the things under s 198AHB of the Act because:

•    There was an interim arrangement between Australia and Nauru in relation to a cohort of three individuals, of which the applicant was not one.

•    There were no other third country reception arrangements.

    The Commonwealth was negotiating with Nauru in respect of a potential further third country reception arrangement but the possibility that such an arrangement could be finalised is entirely speculative and is not a direct and immediate consequence of any decision that might be made by the Tribunal.

    It was not for the Tribunal to assess the likelihood of such an arrangement being finalised. The finalisation of any such arrangement involved politically sensitive matters and the conduct of another country.

    Section 76AAA of the Act was not enlivened in the event that the Tribunal affirmed the cancellation decision.

    There was considerable uncertainty as to whether the applicant would ever be subject to s 76AAA because it would require:

•    The Commonwealth to enter into an arrangement with a third country;

•    An officer of the Commonwealth to take the steps required under s 198AHB of the Act to facilitate the third country being able to consider the applicant for the grant of a visa; and

•    There to be a permission (e.g. a visa) granted by that third country.

127    The applicant’s contention that the Minister’s representations concerning the interim arrangement with Nauru were misleading is not accepted.

128    The terms of the interim arrangement were reproduced in GNHW at [11]. Although expressed in general terms, the cover letter from the Minister for Home Affairs to the President of Nauru, dated 31 January 2025, to which those terms were attached, provided (original emphasis):

I have now asked that my senior officers work with Nauruan officials to consider an initial settlement of up to three individuals as a first cohort. This approach will ensure that each Government’s respective procedures and systems are sufficiently mature to support the arrangement going forward. I trust that the small number will support the Government of Nauru in achieving this outcome, by alleviating the demands on the Government of Nauru’s resources …

129    A letter from the President of Nauru to the Minister for Home Affairs dated 10 February 2025 stated:

… I write to confirm that the Government of Nauru agrees to the interim third-country reception arrangement as set out in Attachment A of your letter dated 31 January 2025. Further, each of the initial 3 persons, and thereafter any such other persons accepted for settlement while the arrangement is in force, will receive a long term stay visa to enter and remain on Nauru for a period of 30 years.

130    A letter from the Minister for Home Affairs to the President of Nauru dated 12 February 2025 stated (emphasis added):

Thank you for confirming that the Government of Nauru agrees to the interim third country reception arrangement set out in Attachment A of my letter dated 31 January 2025, and for advising that each of the initial 3 persons will receive a long term stay visa to enter and remain on Nauru for a period of 30 years.

On that basis, my letter of 31 January 2025, your reply letter of 10 February 2025 and this letter together shall constitute an agreement between the Commonwealth of Australia and the Government of Nauru …

131    Most recently, the High Court in TCXM v Minister for Immigration and Citizenship [2026] HCA 13 at [15] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) described the interim arrangement with Nauru in the following terms:

The Interim Arrangement is expressed: (1) to be a “third country reception arrangement” contemplated by s 198AHB of the Migration Act; (2) to have “enter[ed] into force” on 12 February 2025 albeit that it is "not intended to create any legally binding rights or obligations"; (3) to remain in force until replaced by a new third country reception arrangement or ceased by mutual consent; and (4) to apply for so long as it remains in force in relation to the removal from Australia and acceptance, receipt or ongoing presence in Nauru of an initial cohort of up to three non-citizens.

132    When the terms of the interim arrangement are read in the context of the totality of the correspondence between the Minister for Home Affairs and the President of Nauru and in the context of the totality of the submissions made to the Tribunal concerning the arrangement with Nauru, it was reasonable for the Minister to describe the interim arrangement as being limited to a cohort of three individuals. In context, that description could not be described as misleading.

133    The applicant’s submission that the Minister’s submission to the Tribunal in relation to a finalised third country reception arrangement with Nauru and its possible application to the applicant could also not fairly be described as misleading. Unlike the apparent omission from representations that were made to the Tribunal in GNHW, here the Minister represented to the Tribunal that a final agreement with Nauru was being negotiated. The Minister could not make a representation to the Tribunal about the intentions or proposed future actions of an independent third party, such as Nauru. Furthermore, there was nothing misleading in the Minister’s representation to the Tribunal that, for the applicant to be subject to removal to Nauru, he would require a permission (eg a visa) to be granted by Nauru.

134    The Tribunal did not accept the applicant’s submission that the government intended to remove the applicant as soon as possible, likely to Nauru: TR [112]. The applicant’s reliance on general media releases in support of the contention had been noted by the Tribunal and the Tribunal’s reasons record that the Tribunal had read those materials: TR [109(e)]. None of the materials were specifically related to the applicant. When read fairly and in context of the Tribunal’s statement in its reasons that there was no evidence in support of the applicant’s submission, this is to be read as a statement that the Tribunal had before it no evidence of an intention that related specifically to the applicant.

135    In any event, as the Minister submitted, the Tribunal gave a second reason for not accepting the contention that had been made to it by the applicant – namely, that the applicant’s removal was not a direct or reasonably proximate consequence of the Tribunal’s decision in this matter given that an agreement had not been reached with Nauru nor any third country in relation to the grant of a permission to the applicant by that third country: TR [112]. The applicant seeks to characterise the two reasons as compound reasons that cannot be assessed independently. That characterisation is not accepted. Read fairly, the second reason given by the Tribunal was separate from its finding in relation to “no evidence” and was supported by the Tribunal’s findings in relation to the scope and status of the arrangements with Nauru. The Tribunal considered the consequence was not a direct or reasonably foreseeable consequence of the Tribunal’s decision because the applicant was not a member of the three-person cohort under the interim arrangement with Nauru, and a finalised agreement with Nauru had yet to be reached at the time of the Tribunal decision.

136    The weight to be attached to the submission about potential removal was a matter for the Tribunal. The Tribunal characterised the potential removal of the applicant to a third country as speculative. Having concluded that the consequence of removal was too remote, the Tribunal did not accept the post-hearing submission that there was an immediate and ongoing risk of removal.

137    The reasoning of the Tribunal in support of its rejection of the applicant’s submission regarding removal to a third country was not illogical or irrational.

138    Ground 2 is not established.

Ground 3

139    It is common ground that the Tribunal has power to grant an adjournment and that the power must be exercised reasonably. The applicant accepts that there was no obligation on the Tribunal to grant an adjournment of the hearing merely because an applicant requests an adjournment. The applicant submits that it was the confluence of circumstances in this particular case that made the Tribunal’s refusal for an adjournment unreasonable and thus resulted in jurisdictional error. Those circumstances were identified as the fact that the Tribunal was aware that the applicant had pro bono legal representation in another matter before the Tribunal but had not contacted those lawyers about legal representation for the present case. Those lawyers were helping the applicant obtain legal representation in the present case and had advised the applicant that he would be able to obtain legal representation “straightaway” and legal representation was in fact secured after the hearing concluded and before the Tribunal had made its review decision.

140    As the High Court plurality said in Li at [82]:

It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.

141    It is necessary to consider the precise circumstances of this case. A review of the transcript of the Tribunal hearing discloses the following:

    At the commencement of the second day of the hearing (the applicant having not appeared on the first day due to a medical emergency), the applicant requested an adjournment because he was “just in the middle of trying to get a lawyer”.

    The Tribunal was aware that the applicant had had legal representation (Gadens) in his other matter before the Tribunal concerning his protection visa application. The applicant represented to the Tribunal that those lawyers had told him that “they wouldn’t represent me for this case”.

    The applicant had made “some applications” and had also “tried to get a private lawyer that [he] could pay”.

    The Tribunal had, when making scheduling orders, provided the applicant with some potential sources of pro bono assistance and it had been open to the applicant to try to get legal representation for some months.

    The Tribunal directly asked the applicant:

Are you telling me that there would be the potential for you – or have you received any advice that there is a lawyer who is willing to represent you immediately or not?

BKRD: Gadens, they are working with me. They’re trying to help me to get one.

    The Tribunal considered that there was no evidence to suggest that if an adjournment was granted for a brief period, the applicant would be able to obtain a lawyer. The applicant’s representations went no further than Gadens were trying to help him obtain a lawyer. The following exchange then occurred:

BKRD: But Gadens told me yesterday – they say if I decide to get a private lawyer that would be instant straightaway so they just advise me to ask you if you could give me the opportunity to.

SENIOR MEMBER: There’s no evidence before me that you have commissioned a private lawyer. There is no evidence before me from Gadens or anyone else that there is the prospect of pro-bono assistance if I was to adjourn for a brief period, and you’re raising legal representation on the second hearing day of this matter when you’ve had since April to organise this. So I’m going to proceed with the hearing …

142    As the transcript shows, the applicant did request an adjournment, but it appears to be in the context of the applicant seeking an opportunity to instruct private lawyers. It was not unreasonable for the Tribunal to consider that the applicant had had an opportunity to instruct such lawyers. The Tribunal was aware that Gadens was acting for the applicant in another proceeding and having been told by the applicant that Gadens had declined to act for him in the present proceedings, it was not unreasonable for the Tribunal to consider that there was no evidence before it that there was a prospect of the applicant obtaining pro bono assistance if the matter were adjourned for a brief period. Nor was it unreasonable for the Tribunal to not make further inquiries of Gadens.

143    The mere fact that there was no pressing urgency to conclude the review did not mean that the Tribunal was obliged to grant an adjournment upon the request of the applicant. In the circumstances, the refusal of the applicant’s request for an adjournment was not outside the scope of the decisional freedom the Tribunal had in the exercise of its discretion.

144    Ground 3 fails.

Ground 4

145    This ground concerns the exchange between the Tribunal and the Minister on the first day of the Tribunal hearing when the applicant was not in attendance.

146    Section 81 of the ART Act provides:

The Tribunal may proceed with a Tribunal case event that relates to a proceeding in the absence of a party to the proceeding if the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event.

147    The term “Tribunal case event” is defined in s 4 of the ART Act in the following terms:

Tribunal case event, in relation to a proceeding in the Tribunal, means:

(a)    the hearing, or part of the hearing, of the proceeding; or

(b)    a directions hearing, or part of a directions hearing, in relation to the proceeding; or

(c)    a dispute resolution process, or part of a dispute resolution process, under Subdivision C of Division 6 of Part 4 in relation to the proceeding.

148    The Tribunal therefore had power to proceed with the hearing in the absence of the applicant if the Tribunal was satisfied that the applicant had received appropriate notice of the hearing. The Tribunal in the present case was confident that the applicant had been contacted on his preferred contact details as provided to the Tribunal. The Tribunal therefore had power to proceed with the hearing if it so wished.

149    The applicant’s contentions relate to the manner in which the Tribunal exercised that power. The applicant contends that having decided to adjourn the proceedings on the first day of the hearing, the Tribunal denied the applicant procedural fairness in then proceeding to discuss “matters of substance” with the Minister.

150    Consideration of the applicant’s contention requires an examination of what occurred on the first day of the hearing. A review of the Tribunal transcript reveals that:

    When the applicant did not appear, the Minister suggested that the Tribunal adjourn briefly and a further attempt to contact the applicant be made. The Minister advised the Tribunal that if the applicant did not appear, he would be minded to apply for the application to be dismissed.

    The Tribunal adjourned and observed that this proceeding was a remittal from this Court and approximately 1,000 pages of documents had been lodged with the Tribunal.

    When the applicant continued to fail to appear, the Minister made submissions in relation to the powers the Tribunal could exercise in circumstances where an applicant fails to appear:

•    Proceed with the hearing in the absence of the applicant (s 81 of the ART Act).

•    Determine the matter without a hearing (s 106(5) of the ART Act).

•    Dismiss the application (s 99 or s 100 of the ART Act).

•    Adjourn the hearing (s 82 of the ART Act).

    The Minister submitted that the exercise of any one of those powers would be reasonable but submitted that the Minister considered it preferable for the Tribunal to proceed under either s 81 or s 106(5) of the ART Act.

    The Tribunal indicated that it was drawn to proceeding in the applicant’s absence but was not sure whether to proceed to determine the matter on the papers or to proceed to hear from the Minister. The Tribunal considered that it had not had sufficient time to look at the material in detail and considered that it wished to have time to look at the almost 1,000 pages of lodged materials to see if there is anything the Tribunal wished to raise with the Minister.

    The Tribunal identified matters which it would have liked to ask the applicant and which, in the absence of putting those matters to the applicant, the Tribunal wished to consider how such matters might be dealt with by the Tribunal. Those matters were identified by the Tribunal as:

•    The applicant’s illicit drug addiction history which seemed to be for a longer period than his drug related convictions.

•    Matters relating to his custodial conduct that did not result in criminal convictions but which may have been subject to governor’s disciplinary hearings.

•    Clarifying when the applicant left home.

•    Obtaining an accurate chronology of the applicant’s offending history. The Minister confirmed to the Tribunal that the Minister did not rely on offending for which no conviction was recorded.

•    Clarification about an incident in 2023 where the applicant was found with an illicit substance and whether the applicant had an existing treatment for addiction to that substance.

•    Making further inquiries of the applicant’s involvement in family violence having regard to a number of family violence intervention orders.

•    The applicant’s engagement with men’s behavioural change programs since his release.

•    The nature of the applicant’s relationship with his family members and his relationship with his children, including a potential fourth child.

•    The fact that since the High Court’s decision in NZYQ, the issues under Direction 110 need to be considered in a different light: “the issue turns more on what type of visa he holds, whether it’s the conditional BVR or … the visa that he previously held”.

    The Tribunal asked the Minister to “turn [his] mind to that on the presumption that the applicant doesn’t turn up tomorrow”.

    The Tribunal concluded the first day of hearing on the following basis:

And I normally would have, obviously, had a closer look at all this if we had proceeded on to hearing. And that’s why, I guess, I’m just alerting you to the things that have jumped out at me in the early stages that I may need to enquire about. But unless there’s anything more from you or your instructor,…, I propose to adjourn until 10 tomorrow and proceed, as I’ve said, for my associate to send the applicant one further email, illuminating to him the importance of attending an application that he has not withdrawn, to try and call his number again, and then for us to resume at 10 tomorrow, where if he doesn’t appear, I can either hear from you in terms of closing submissions, make any enquiries that I have, or say to you that I’m satisfied with what I have in terms of the documentary evidence and proceed on that basis.

151    Section 106 of the ART Act relevantly provides:

Tribunal may make decision without hearing in certain circumstances

(1)     The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.

…

Party fails to appear

(5)    This subsection applies if:

(a)    a party to the proceeding fails to appear at a Tribunal case event that relates to the proceeding; and

(b)    the party is not a non-participating party to the proceeding or Tribunal case event; and

(c)    the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event; and

(d)    it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

152    Contrary to the applicant’s characterisation of what occurred on the first day, that the Tribunal had not made a decision on which power to exercise, the Tribunal had made a decision not to dismiss the proceedings at the conclusion of the first day but was otherwise unsure as to whether it would determine the proceedings on the papers or whether it would proceed to a hearing for the determination of the proceedings in the absence of the applicant, on the assumption that the applicant would not appear the following day.

153    Given that the Tribunal was considering whether to proceed without an oral hearing, the Tribunal had to first consider the documents and materials given to the Tribunal and be satisfied that the issues for determination could be adequately determined in the absence of the parties to the proceeding.

154    The Tribunal acknowledged that it was going to consider the documents over the remainder of the day and was foreshadowing those issues that it wished to be satisfied could be adequately determined in the absence of the applicant, in the expectation that the applicant would not show the following day. The issue is whether in raising those matters the applicant was denied procedural fairness in circumstances where the applicant did in fact appear the following day.

155    Read in context, the Tribunal identified matters that it was concerned it may not be able to adequately determine in the applicant’s absence and was asking the Minister to assist it in considering whether the materials before the Tribunal enabled those matters to be adequately determined should the applicant not appear the following day.

156    There may have been substance to the applicant’s complaint had the Tribunal proceeded to determine any of the issues raised with the Minister without putting those matters to the applicant. But that is not what occurred. The Court was provided with a schedule setting out the Tribunal transcript references where the matters identified above were raised with the applicant. The only matter not raised with the applicant related to his offending history to the extent that no conviction was recorded. But as noted above, the Minister had confirmed to the Tribunal that the Minister did not rely on offending for which no conviction was recorded and there is nothing in the Tribunal’s reasons that indicates that the Tribunal considered such offending in making its decision. There was, in the circumstances, no denial of procedural fairness to the applicant arising from the Tribunal’s conduct on the first day of the hearing.

157    Having regard to the course of events, the Court is not satisfied that the discussion between the Tribunal and the Minister gives rise to a reasonable apprehension of bias. It is difficult to see how a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided, on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ). It is not clear how the Tribunal raising those issues that it wished the Minister to address the following day, should the applicant not appear, might lead a fair-minded observer to conclude that the Tribunal might not bring an impartial mind to bear on the resolution of the proceedings. The Tribunal was putting the Minister on notice that there may be issues for determination that the Tribunal was unsure could be adequately determined in the absence of the applicant and the Minister would need to assist the Tribunal if the applicant did not appear, before the Tribunal would be willing to make a decision determining the proceedings without a hearing. The applicant did in fact appear and the matters were put to the applicant. There was nothing in the Tribunal’s discussion that might lead a fair-minded lay observer to reasonably believe the Tribunal would not consider the applicant’s application on its merits.

158    Ground 4 is not made out.

CONCLUSION

159    It follows that the applicant’s further amended originating application is to be dismissed.

160    The applicant is to pay the first respondent’s costs of the application to be taxed if not agreed.

Associate:

Dated:    3 July 2026