Federal Court of Australia

DYFV v Minister for Immigration and Citizenship [2026] FCA 1069

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

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

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

REASONS FOR JUDGMENT

KENNETT J:

Background

1    The applicant is a citizen of Iraq who arrived in Australia in May 2013 as an unauthorised maritime arrival. He was granted a Temporary Protection (Class XD) (Subclass 785) visa (protection visa).

2    The applicant has a very serious criminal history, including convictions for family violence, intimidation and threatening to distribute intimate images without consent. Between October 2014 and June 2017, the applicant was convicted of three counts of “contravene prohibition/restriction in AVO (Domestic)” and received a good behaviour bond for each offence. As a result of this offending, the first respondent (the Minister) considered refusing the applicant’s pending visa application under s 501 of the Migration Act 1958 (Cth) (the Act) but ultimately did not do so.

3    In August 2024, the applicant was convicted of nine counts of aggravated break and enter offences for which he was sentenced to an aggregate term of imprisonment of six years. On 23 October 2024, the applicant’s protection visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Act on the basis that the applicant did not pass the “character test” and was serving a full-time custodial sentence.

4    Where a visa is cancelled under s 501(3A), s 501CA(3)(b) of the Act requires the Minister to invite representations from the visa holder about revoking the cancellation of his or her visa and, should representations be made, to consider whether the cancellation should be revoked. Upon invitation, the applicant made such representations on 4 November 2024. On 4 December 2025, a delegate of the Minister decided not to revoke the cancellation under s 501CA(4) (the non-revocation decision).

5    On 11 December 2025, the applicant applied for review of that decision to the Administrative Review Tribunal (the Tribunal). On 2 March 2026, the Tribunal affirmed the Minister’s decision (the Tribunal decision). It published its reasons on 9 March 2026 (paragraphs of which are referred to below as “R”).

The Tribunal’s reasons

6    It was not in dispute before the Tribunal that the applicant failed the “character test” under s 501(6)(a) of the Act (R [15]-[16]). Accordingly, the only issue for determination was whether there was another reason to revoke the cancellation of his visa under s 501CA(4)(b)(ii) of the Act.

7    It was understood by the Tribunal, and is not in dispute, that in making its decision the Tribunal was bound by Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110). The structure of the Tribunal’s reasons reflects the considerations to which decision-makers were required by Direction 110 to have regard.

8    The “primary considerations” listed in Direction 110 were discussed and analysed by the Tribunal as follows:

(a)    Primary consideration 1 – protection of the Australian community (R [17]-[49]) was considered to weigh very heavily against revoking the cancellation decision;

(b)    Primary consideration 2 – family violence committed by the non-citizen (R [50]-[58]) was found to be a factor of strong weight against revocation;

(c)    Primary consideration 3 – the strength, nature and duration of ties to Australia (R [59]-[65]) was afforded some weight in favour of revocation;

(d)    Primary consideration 4 – the best interests of minor children affected by the decision (R [66]-[77]) was considered to be of moderate weight in favour of revocation; and

(e)    Primary consideration 5 – expectations of the Australian community (R [78]-[83]) was afforded strong weight in favour of non-revocation.

9    The Tribunal then turned to the “other relevant considerations” identified in Direction 110 (R [84]-[102]), which included the legal consequences of the decision (R [84]-[92]); extent of impediments if removed (R [93]-[98]) and impact on Australian business interests (R [99]-[102]).

10    The applicant’s argument in this proceeding focuses on the Tribunal’s reasoning in relation to the first of these considerations. He alleges a failure by the Tribunal to properly consider the legal consequences of affirming the non-revocation decision including by failing to engage with the question of whether removal to a regional processing country was practicable in the reasonably foreseeable future.

11    First, the Tribunal noted that the applicant was the subject of a protection finding and his removal to Iraq was neither required nor authorised under s 198 of the Act (R [85]).

12    Secondly, the Tribunal found that s 198AD of the Act required the appellant to be taken as soon as reasonably practicable to a regional processing country (R [86]). The Tribunal then observed the effect of the High Court’s judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 (NZYQ) (at R [87]) and said at R [86]-[88]:

[86]    Section 198 of the Act provides for the removal from Australia of unlawful non-citizens. The Applicant is an unauthorised maritime arrival and section 198AD provides for taking unauthorised maritime arrivals to a regional processing country. Absent the exceptions provided for in ss 198AE, 198AF or 198AG, s 198AD requires the Applicant to be taken, as soon as reasonably practicable, to a regional processing country.

[87]    The effect of the High Court’s judgement in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (‘NZYQ’) is that detention of an unlawful non-citizen is not validly authorised by s189 if there is no real prospect of removal from Australia ‘becoming practicable in the reasonably foreseeable future’. As the question of removal is to be assessed by reference to whether there is a real prospect of removal to a regional processing country - such as the Republic of Nauru (‘Nauru’) - becoming practicable in the reasonably foreseeable future, I accept the Respondent’s submission that the Applicant is not affected by the High Court's judgement in NZYQ. Consequently, affirming the decision will mean s 189 applies and the Applicant is liable for detention upon his release from prison.

[88]    Should the decision be affirmed, the Applicant will in effect be unable to apply for another visa - including a protection visa - onshore, and liable for removal to a regional processing country as soon as reasonably practicable by operation of s 198AD of the Act.

(Emphasis added.)

13    Thirdly, the Tribunal addressed the applicant’s submissions on the likely removal of the applicant from Australia. At R [89] the Tribunal said:

The Applicant expects that he is likely to be removed Nauru (sic). To his knowledge, he has not been issued a visa by Nauru but considers it a foreseeable practical consequence of the decision which should be afforded considerable weight. It is submitted on behalf of the Applicant that:

Removal or transfer to a third-country processing centre constitutes one of the most severe consequences available … and the Tribunal must undertake a genuine assessment of proportionality, weighing the seriousness of the Applicant’s conduct against the nature and extent of the harm likely to flow from the decision.

...

…while the Australian Government and the community are entitled to protect the public interest, measures of this severity should ordinarily be reserved for noncitizens who have committed the most “very” serious offences, including murder, serious sexual offending, offences against children, and other crimes of comparable gravity. In circumstances falling materially short of that threshold, the imposition of consequences of this magnitude is disproportionate.

(Emphasis in original and citations omitted.)

14    The Tribunal once again stressed at R [90] that:

In considering whether there is another reason to revoke the cancellation of the Applicant’s visa, I am required to consider the legal consequences of the decision having regard to the Direction … Irrespective of the Applicant’s contention that removal to a third country processing centre should be reserved for certain ‘types’ of offences, as an unauthorised maritime arrival, section 198AD provides that should he be detained he is to be taken from Australia to a regional processing country.

(Emphasis in original.)

15    Fourthly, the Tribunal acknowledged that there was no evidence before it of any concrete steps to remove the applicant at R [91]:

While there is no evidence before me that definite steps have been taken by the Respondent to remove the Applicant, the Act provides that unless the visa is reinstated, he will be detained and liable for removal to a regional processing country as soon as reasonably practicable. Other decisions would need to be made before the Applicant is removed. He will face considerable uncertainty as he can be removed to a third country without further opportunity to present reasons why he should not be removed to that country.

16    Finally, the Tribunal concluded in respect of the legal consequences consideration at R [92] that “the legal consequences of the decision weigh strongly in favour of revocation.”

17    After discussing the remaining “other” considerations, the Tribunal summarised its conclusions on the considerations at R [103]-[105]. At R [106] it said:

On balance, I find that the considerations that favour revocation are significantly outweighed by those which weigh against revoking the cancellation of the visa. As such, the reviewable decision will be affirmed.

The ground of review

18    The originating application contains a single ground of review as follows.

The Tribunal committed a jurisdictional error by failing to genuinely consider the legal consequences of affirming the cancellation decision, in circumstances where it accepted those consequences weighed strongly in favour of revocation but failed to engage with whether the Applicant’s prospective detention would be lawfully authorised under the Migration Act 1958 (Cth) (“the Act”).

(Particulars omitted.)

19    The applicant’s submissions were to the following effect.

(a)    Direction 110 obliged the Tribunal to consider the legal consequences of revoking the visa as a mandatory relevant consideration;

(b)    Having concluded that s 198AD of the Act required the applicant to be taken to a regional processing country (ie, Nauru), the Tribunal did not “genuinely” engage with the legal foundation of the applicant’s potential detention pending that removal.

(c)    The Tribunal reached the conclusion the applicant was not affected by the decision in NZYQ (and would therefore be liable to detention) without identifying any evidence before it that removal to a regional processing country was a “realistic and current option” and by “bare assertion”.

(d)    There was no evidence before the Tribunal demonstrating that removal to Nauru was or would become reasonably practicable and the Tribunal was therefore required to “genuinely inquire into and assess” the lawfulness of the applicant’s prospective detention.

20    Developing these submissions orally, counsel for the applicant submitted that, in the absence of evidence on the prospects of removal to Nauru, there were two possible legal consequences for the Tribunal to consider:

(1)    the applicant would be held in detention for a substantial period of time, possibly indefinitely; and

(2)    the applicant would be released, having been granted an appropriate visa, within a short time.

21    It was submitted that the first of these possibilities would give rise to concerns about the lawfulness of detention should the period of any detention be prolonged. However, counsel properly accepted that it would be inappropriate for the Tribunal to treat the “legal consequences” of revocation as including something unlawful (cf AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586 at [34] (Murphy, Stewart and McEvoy JJ); TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451 at [55] (Wheelahan J) (an appeal to the High Court was dismissed)) and therefore focused on the second possible consequence as the path that the Tribunal should have taken.

22    It will be recalled that, on the basis of its understanding that the applicant would be detained, the Tribunal considered the legal consequences of the decision to “weigh strongly” in favour of revoking the cancellation. Had a different finding been made, this consideration would have carried less weight in the applicant’s favour. However, the applicant submitted that a different finding about the issue of detention would have had the capacity to alter the weight attributed to some of the primary considerations (eg, the issue of protection of the community might have been viewed differently if it had been understood that revocation would not result in the applicant being detained) and could therefore have realistically resulted in a different decision.

Consideration

23    The review in the Tribunal was commenced under s 500(1)(ba) of the Act and proceeded under the general provisions of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and not under Part 5 of the Act. Proceedings under Part 5 and the former Part 7 of the Act (including in the former Migration Review Tribunal and Refugee Review Tribunal) were often described as inquisitorial in nature. However, under the ART Act, the Tribunal proceeds on an adversarial model.

24    Division 5 of Part 4 of the ART Act concerns the Tribunal’s procedure. Relevantly here, ss 55 and 56 of the ART Act provide as follows.

55 Right to present case

General rule

(1)    The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:

(a)    present the party’s case; and

(b)    access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and

(c)    make submissions and adduce evidence.

…

(4)    This section does not limit section 53 (Tribunal controls scope of review of decision).

56 Parties and their representatives to assist Tribunal

Decision-makers and their representatives

(1)    In a proceeding for review of a decision, the decision-maker and any person representing the decision-maker must use their best endeavours to assist the Tribunal to:

(a)    make the correct or preferable decision in relation to the proceeding; and

(b)    achieve the objective in section 9.

Other parties and their representatives

(2)    A party to a proceeding in the Tribunal (other than the decision-maker in a proceeding for review of a decision) and any person representing the party must use their best endeavours to assist the Tribunal to achieve the objective in section 9.

Obligation is limited for non-participating party

(3)    The obligation of a non-participating party to a proceeding or a Tribunal case event in relation to a proceeding, and any person representing the party, to use best endeavours to assist the Tribunal in relation to the proceeding only applies in relation to action the party is required to take by this Act or the Tribunal in relation to the proceeding.

25    Subdivision B of Division 5 of the ART Act deals further with the rights of “parties” in a review proceeding, including a right to be represented (s 66). Section 103 (which is in Division 8 of Part 4) expressly authorises the Tribunal to make a decision on the review or an aspect of the review in accordance with an agreement reached by the parties and recorded in writing, without completing the hearing or coming to its own conclusion as to the correct or preferable decision. Thus, although the Tribunal (like the former Administrative Appeals Tribunal which it replaced) stands in the shoes of the original decision-maker (see eg Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; 278 CLR 628 at [14] (Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ)), may exercise the powers of that decision-maker (ART Act s 54) and “may inform itself on any matter in such manner as it considers appropriate” (ART Act s 52), the scheme of the ART Act clearly envisages the parties to the review playing a major role in defining the issues in the review by identifying what is and is not in dispute between them. Considerations of procedural fairness would obviously require the parties to be heard if the Tribunal was considering making a finding for which no party had contended; and, ordinarily at least, if the parties are agreed on an issue of fact, the Tribunal does not err by accepting that position.

26    In the present case, each party filed a Statement of Facts, Issues and Contentions (SFIC) in accordance with the Tribunal’s usual procedure. The Minister’s SFIC was filed first and an amended version was filed later in response to the appellant’s SFIC. Relevantly to the present issue, the Minister’s Amended SFIC said (at [71]):

The applicant is an unauthorised maritime arrival (TB4/286). In circumstances where none of the exceptions in ss 198AE, 198AF, or 198AG apply, s 198AD requires that, once detained, the applicant be taken, as soon as reasonably practicable, to a regional processing country. In such circumstances, the general duty to remove an unlawful non-citizen under s 198 does not apply. The applicant is therefore not affected by the High Court’s judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, as the question of removal is to be assessed by reference to whether there is a real prospect of removal to a regional processing country (i.e., Nauru) becoming practicable in the reasonably foreseeable future. Accordingly, on his release from prison, he will be liable for detention under s 189.

(Footnote omitted and underlining in original.)

27    The applicant (who was legally represented) put his position in the following way in his SFIC.

Legal Consequences of the Decision

[63]    We make strong representations in relation to this consideration. As noted in the Respondent’s SFIC, the consequences flowing from affirmation of the Delegate’s decision are both foreseeable and significant and must be meaningfully weighed by the Tribunal.

[64]    We concur with the Respondent’s assessment and interpretation of the Migration Act 1958 in relation to the non-refoulement obligations owed to the Applicant, as set out in the Respondent’s Statement of Reasons (SFIC). Pursuant to s198 of the Act, unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable, subject to the qualifications contained within that provision.

[65]    Pending removal, such persons are subject to mandatory detention under s189. S197C (1) provides that Australia’s non-refoulement obligations are irrelevant when determining removal under s198. However, s197C (3) creates an important statutory qualification: s198 does not require or authorise the removal of a person to a country in respect of which a protection finding has been made during the assessment of a protection visa application. The legal effect of such a finding is that Australia recognises the person cannot be forcibly returned, deported, or expelled to a place where they would face harm of the kind protected under international law.

[66]    Importantly, if the Tribunal affirms the Delegate’s decision, the Applicant is likely to be removed from Australia or transferred to a third-country processing arrangement, most likely Nauru. Although the Applicant has not yet been served with, or notified of, the grant of any visa by the Republic of Nauru, the Tribunal is required to consider the practical consequences of its decision, including outcomes that are reasonably foreseeable, rather than contingent or speculative.

[67]    Removal or transfer to a third-country processing centre constitutes one of the most severe consequences available and where a decision carries consequences of such gravity, the Tribunal must undertake a genuine assessment of proportionality, weighing the seriousness of the Applicant’s conduct against the nature and extent of the harm likely to flow from the decision.

[68]    We contend, while the Australian Government and the community are entitled to protect the public interest, measures of this severity should ordinarily be reserved for non-citizens who have committed the most ‘very’ serious offences, including murder, serial sexual offending, offences against children, and other crimes of comparable gravity. In circumstances falling materially short of that threshold, the imposition of consequences of this magnitude is disproportionate.

[69]    Accordingly, the likely consequences of affirming the Delegate’s decision weigh heavily in favour of setting aside the non-revocation decision and substituting it with a decision to revoke the cancellation of the Applicant’s visa.

(Emphasis added.)

28    The transcript of the Tribunal hearing was not in evidence and it is therefore appropriate to proceed on the basis that the parties’ positions remained as set out in their respective SFICs. The applicant did not demur from the Minister’s assertions that the question of the prospects of removal was to be analysed by reference to Nauru and that on this basis: (i) NZYQ did not apply; and (ii) the applicant would be detained under the Act upon his release from prison. He therefore did not put the Minister to proof of the proposition (necessarily implicit in these assertions) that there was a realistic prospect of removal to Nauru becoming practicable in the reasonably foreseeable future. Indeed, he embraced removal to a “third-party processing country” (probably Nauru) as a “likely” consequence of revocation of his visa and submitted that this was a severe consequence that the Tribunal ought to take into account.

29    In relation to the former Refugee Review Tribunal, which operated in an inquisitorial manner with no joinder of issues between parties, Gleeson CJ observed in in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 at [1]:

this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.

30    The position is clearer where the Tribunal review proceeds under the provisions of the ART Act referred to above. Thus, in DXJL v Minister for Immigration and Citizenship [2025] FCA 1303 (which, like the present case, involved review by the Tribunal of a non-revocation decision under s 501CA(4)) Hill J observed at [69] that:

the degree of consideration required by the Tribunal is affected by the way the case was run before it, particularly when (as here) the non-citizen is represented before the Tribunal.

31    In the present case, in circumstances where both parties had expressly addressed the question of whether the applicant was likely to be removed from Australia (and to what country) and agreed that removal to Nauru was “likely”, the Tribunal did not err by proceeding on that basis and accepting the consequential submission of the Minister (which the applicant did not resist) that he would be required to be detained until that removal was achieved. Even if it were correct to suggest that the Minister bore an onus of proof on this issue (which I do not accept: see McDonald v Director-General of Social Security (1984) 1 FCR 354 (Woodward J)), he was relieved from satisfying that onus by the applicant’s acceptance of the substance of the position he advanced. Further, the Tribunal was not required to insist on evidence being adduced on a point that was not contested.

32    For these reasons, the applicant’s ground of review must be rejected and the application dismissed with costs.

Associate:

Dated:    5 August 2026