Federal Court of Australia

DKCQ v Minister for Immigration and Citizenship [2026] FCA 1079

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant is refused leave to add the new ground of review outlined in their further submissions of 3 June 2026.

2.    The orders of the Administrative Review Tribunal (Tribunal) dated 14 March 2025 be set aside.

3.    The Applicant’s application be remitted to the Tribunal (differently constituted) for determination according to law.

4.    Subject to order 5, the First Respondent pay the Applicant’s costs of the judicial review application as taxed in default of agreement.

5.    If the First Respondent seeks a costs order different to that set out in order 4, then:

(a)    the First Respondent must file submissions within 7 days of the date of this order identifying the basis for any different order as to costs; and

(b)    the Applicant may file responsive submissions within 7 days of the receipt of any submissions filed by the Respondent.

6.    Any issue as to costs arising by reason of order 5 above will be determined on the papers without further hearing.

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

REASONS FOR JUDGMENT

BENNETT J:

1    This case concerns an application for judicial review of a decision of the Administrative Review Tribunal (Tribunal) on 14 March 2025, affirming a decision of a delegate of the Minister (Delegate) not to revoke the mandatory cancellation of the Applicant’s Resident Return (Class BB) visa. The Applicant pressed three grounds of review (the third ground being added by leave at the commencement of the hearing). The second ground of review alleged that the Tribunal’s decision was affected by a reasonable apprehension of bias.

2    For the reasons that I have explained below, I accept that the decision was so infected, and thus that ground 2 must be allowed. The other grounds are briefly considered given that conclusion.

Background facts

3    The facts relevant to the present application may be stated shortly.

4    In July 2012, the Applicant was granted a Protection Visa (Class XA) (Subclass 866) on the basis of a determination that he satisfied s 36(2)(a) of the Migration Act 1958 (Cth) (Migration Act). In January 2022, the Applicant was granted a Resident Return (Class BB) visa. In November 2022, the Applicant engaged in offending that led to him being charged with, pleading guilty to, and ultimately being convicted of “Person sex assault by touch child U/16”. He was sentenced in September of 2024 to a term of imprisonment of three years and three months. On 20 September 2024, the Applicant was notified that his visa had been cancelled by a Delegate under s 501(3A) of the Migration Act. On 17 October 2024, he requested that the Minister revoke the cancellation decision. On 20 December 2024, the Applicant was notified that a Delegate had decided to not revoke the cancellation decision. The Applicant applied to the Tribunal for review of that decision.

5    On 4 March 2025, the Tribunal, constituted by a General Member (Member), conducted a hearing of the Applicant’s application. The Applicant was unrepresented and appeared with the assistance of an interpreter. His appearance was by audio-visual link. The Minister was represented by a lawyer.

6    On 14 March 2025, the Tribunal affirmed the Delegate’s decision not to revoke the mandatory cancellation decision.

Does a reasonable apprehension of bias arise?

7    The second ground advanced by the Applicant alleges that a reasonable apprehension of bias arises from an incident which occurred during the Tribunal hearing.

8    The Tribunal hearing went for approximately 2 hours and 40 minutes. There were persistent technical difficulties. Approximately 42 minutes into the hearing, during cross-examination of the Applicant by the Minister’s representative, the audio-visual connection by which the Applicant had been participating in the hearing was disconnected. The disconnection lasted for a period of approximately 3 minutes and 15 seconds. During the period of the disconnection, the Applicant could not see or hear what was said, and the substance of what occurred was not relayed to him until after a decision was made, and after he (or his representatives) listened to the audio of the hearing. It was common ground that the exchange was as follows:

Member:     Oh, good heavens. Oh look, seriously, just bear with us.

Minister’s Representative:     I don’t have too many more questions left hopefully.

Member:    No no look I don’t think this is a particularly challenging matter but the interruptions are annoying.

9    The Applicant submitted that the statement by the Member reasonably admits an interpretation that the Member was expressing a view that the case was not a “challenging” one, meaning that the Member considered that it lacked merit. The Applicant said that it might be thought that the Member was implicitly assuring the Minister’s representative that there was no need to ask more questions because he had already decided and that his decision was likely to be adverse to the Applicant.

10    The Respondent argued that the Applicant’s interpretation is not open and that the Tribunal could not reasonably be understood as having indicated to the Minister’s representative that the outcome of the matter was not challenging. It was said that the comment could only be understood as being a reference to the procedure or running of the case – ie, that it was not a very involved or procedurally complicated matter. This was said to follow from certain aspects of the context in which the remark was made, including:

(1)    the nature of the case itself, including that the hearing was listed for a single day, the entire review was conducted within less than three hours of hearing time even with interpreters, and there were only two lay witnesses;

(2)    the technical difficulties experienced by the Tribunal in the course of the hearing;

(3)    the Minister’s representative commencing his cross examination of the Applicant by saying “I don’t have too many questions. There’s not a lot of evidence in this matter…”; and

(4)    the Member’s comment arising in the context of a disruption to the running of the hearing because the Applicant was disconnected from the hearing. The Respondent submitted that the impugned comment can thus be seen as referable to procedural matters and not to the merits of the review. In other words, it meant to convey merely that the Respondent’s representative did not have to curtail questioning the Applicant.

11    This ground of review therefore turns in large part on the proper understanding of the impugned comments of the Member, noting that they were made at approximately one quarter of the way into the hearing, in the absence of the Applicant, or a representative of the Applicant.

Principles

12    The principles applying to an application of this kind are not relevantly in dispute and were stated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner). An apprehension of bias arises, and a decision-maker is disqualified, where a fair-minded lay observer, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question they are required to decide (Ebner at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 (Charisteas) at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ); MZZLO v Minister for Immigration and Border Protection (No 2) [2016] FCA 356; 246 FCR 111 at [52] (Moshinsky J)).

13    These are principles that are fundamental to the common law system (Charisteas at [11]). The perspective in question is that of the fair-minded lay observer. While that person “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice” (Johnson v Johnson [2000] HCA 48; 201 CLR 488 (Johnson) at [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), cited in Charisteas at [12]). That same fair-minded lay observer is also taken to be aware of the nature of the decision and the context in which it was made (Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 at [23] (Kiefel, Bell, Keane and Nettle JJ); Leo’o Olo v Minister for Immigration and Multicultural Affairs [2026] FCA 10 (Leo’o Olo) at [21] (Rangiah J)).

14    The test is described as a “double might” test, being a test of real possibility rather than probability (Ebner at [7]; QYFM v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2023] HCA 15; 279 CLR 148 (QYFM) at [37] (Kiefel CJ and Gageler J)). In SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80, Flick J at [22] (Allsop CJ agreeing at [1]) observed that an apprehension of bias must be “firmly established” (quoting Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 (Re JRL) at 352 (Mason J)) and “distinctly made and clearly proved” (quoting Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 (Jia Legeng) at [69] (Gleeson CJ and Gummow J)).

15    In QYFM, Kiefel CJ and Gageler J said (at [38]) that the test for apprehended bias involves three steps, which may be expressed as follows:

(1)    identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits;

(2)    articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and

(3)    assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

16    It is uncontroversial that communications between a judge and one party in the absence of another in the course of proceedings may give rise to a question as to the independence or impartiality of the judge. In Charisteas, the Court at [13] noted that the “most basic of judicial practice” was “relevantly and clearly stated” by McInerny J in R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127 and quoted by both Gibbs CJ (at 346) and Mason J (at 350-1) in Re JRL:

The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.

17    Considerable reliance was placed by the Applicant upon the case of Simcoe v The King [2026] VSCA 19 (Simcoe). That case concerned a communication between the jury and tipstaff in the context of a criminal trial. After the empanelment of the jury – in the course of which the defendant pleaded not guilty – and after taking counsel’s appearances, a short break occurred prior to the trial judge commencing his initial directions. During that break, a member of the jury asked the tipstaff whether the jurors would be allowed to “come for the sentence” (Simcoe at [22]-[24] (Kidd and Kaye JJA)). That interaction took place in the context of relatively prescriptive rules requiring a trial judge to disclose questions asked by the jury (see at [40]) and thus stands in a somewhat different category to the present case. It was not in dispute that the comment by the juror ought to have been communicated to the parties, and that the failure to do so was an irregularity. It was argued, however, that the irregularity was not fundamental (at [44]).

18    The analysis by the Court of Appeal in Simcoe focused on whether or not the fair-minded lay observer might reasonably apprehend that the jury or a juror might not have discharged its functions in deciding the accused’s guilt according to law (at [65]). The Court considered how the juror’s comment might be understood. The Respondent in that case argued that the question could be explained by mere curiosity or naivete (at [59]) and was not necessarily indicative of prejudgment. In considering how the juror’s question should be understood, a majority of the Court of Appeal (Kidd and Kaye JJ) held (at [60]) that:

It is important to keep in mind that the test for apparent bias requires that a fair minded observer might reasonably conclude that the juror in question might not bring a fair and impartial mind. Once it is accepted that a reasonable possibility exists that the question asked by the juror was borne of prejudgment there can be no doubt that the question asked by the juror meets that test. The fact, that there may have been alternative possible innocent explanation, does not exclude or dispel apprehended bias.

19    The majority of the Court in Simcoe upheld the allegation that there had been a substantial miscarriage of justice on the basis that procedural fairness was denied to the accused (at [65]-[66]).

20    The principles in Simcoe are not entirely on all fours with the present case. The procedural requirements of a criminal trial and the requirements of a substantial miscarriage of justice differ from the present case, at least in form. Nonetheless, I accept that the approach taken by the majority of the Court of Appeal in Simcoe is relevant to the meaning to be attributed to an impugned and irregular statement made by a decision-maker in the absence of a party which is said may give rise to an apprehension of bias. That is, where alternative constructions of a statement are available, the fact that there may be a possible innocent explanation for the statement does not dispel or exclude the apprehension of bias that otherwise arises.

21    Apprehended bias that is said to arise because of prejudgment is described as arising where the “reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of prejudgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view” (Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [25] (Kenny, Tracey and Middleton JJ); see also Jia Legeng at  [72] (Gleeson CJ and Gummow J)).

22    Of particular relevance to the present case are the following principles, which arise from the cases identified above:

(1)    An apprehension of bias arises where a fair-minded lay observer, properly informed about the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision.

(2)    The entitlement to a fair hearing without an apprehension of bias is fundamental to the system of courts and tribunals that operate in Australia.

(3)    Communications between a judge and one party in the absence of another in the course of proceedings may give rise to a question as to the independence or impartiality of the judge.

(4)    Comments which may evince prejudgment of the substance of a proceeding will give rise to an apprehension of bias where the reasonable observer might conclude that the decision-maker might not bring to the task an impartial mind by reason of prejudgment.

(5)    Where the statement of a decision-maker is at issue, the Court will assess what the fair-minded lay observer would consider to have been conveyed by the impugned statement in the circumstances in which it was said.

Analysis

23    The cases relied upon by the Applicant broadly fell into two categories:

(1)    where the decision-maker evinces prejudgment of the matter (as was the case in Simcoe) such that the fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to making the decision; and

(2)    where the decision-maker has communications with one of the parties otherwise than in the presence of or with the previous knowledge and consent of the other parties to the proceeding (as was the case in Charisteas).

24    In Simcoe, there was no difficulty in the juror speaking with a tipstaff per se. It is to be expected that a tipstaff will have interactions with jurors. It was the substance of that interaction, carrying the connotation of prejudgment, that was sufficient to ground the reasonable apprehension which gave rise to the substantial miscarriage of justice in that case.

25    In Charisteas, the relevant disclosure stated that the judge did not discuss the substance of the case with the practitioner appearing for one of the parties in the course of their numerous communications (Charisteas at [8]; cf [19]). However, the Court considered that a fair-minded lay observer, who was aware that, once a trial had commenced, private communication between a judge and counsel for one of the parties in the absence of the other (and without their consent) was an obvious departure from the norms of professional conduct, would reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions in dispute (Charisteas at [15]).

26    In the present case, an apprehension of bias is not established because the Member spoke with the Respondent’s representative while the Applicant was offline per se. As counsel for the Applicant properly accepted, a fair-minded lay observer would be aware that the logistics of re-commencing the hearing would require discussion. Discussion of that kind could not be considered by a fair-minded lay observer to give rise to an apprehension of bias.

27    Similarly, there would be no difficulty with a Tribunal Member expressing any views about the difficulty (or otherwise) of the issues presented by a case in the presence of both parties (subject to the authorities regarding apprehended bias on the basis of excessive judicial intervention: see, e.g., Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577; Jorgensen v Fair Work Ombudsman [2019] FCAFC 113; 271 FCR 461 (Jorgensen); Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; 271 FCR 530 (Gambaro)). Indeed, it is generally to the benefit of the parties for a decision-maker to identify any preliminary views that they may have to enable the parties to address or respond to the real issues in a particular case (see, e.g., Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 571 (Brennan, Deane and Gaudron JJ); Re Lusink; Ex parte Shaw (1980) 32 ALR 47 at 53 (Murphy J)). The trial judge is no longer expected to remain, until the moment of pronouncement of judgment, “as inscrutable as the Sphinx” (Johnson at [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ)). Once again, counsel for the Applicant properly accepted that if the impugned comment were made in the presence of the Applicant, then it would be more difficult to establish that a reasonable apprehension of bias arose.

28    However, if the Member spoke about his views of the case in the absence of one of the parties, and those views were adverse to the absent party, that stands in a different category. The logical connection between the conduct and the apprehended deviation from resolving the issues on their merits arises in two interrelated ways:

(1)    First: the comment itself, if it involves communicating a view of the merits of the case, may indicate prejudgment given it was made only a quarter of the way through the hearing. When expressed in the absence of the affected party who would otherwise attempt to counter the comment, a fair-minded lay observer might reasonably apprehend that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view, given that the comment was expressed prior to hearing all of the arguments and evidence.

(2)    Second: making a comment of that kind at all – to the representative of the Minister and in the absence of the person likely to be adversely affected – may represent a departure from the professional standards of a judge or member so as to cause a fair-minded lay observer, properly informed, to reasonably apprehend that the decision-maker might not have brought an impartial mind to the decision.

29    In each instance, the core of the issue depends upon the characterisation of the impugned comment. With the agreement of the parties, I have listened to the audio recording of the hearing in question. A number of observations may be made:

(1)    The Member was generally courteous towards the Applicant, including in the course of language and logistical issues. There was no suggestion of the impatience or hostility that has been identified in some other cases (see, e.g., Bhatti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1583 (Bhatti)).

(2)    There were repeated interruptions to the progress of the hearing, and those technological difficulties were a source of some (understandable) frustration.

30    At the time of the impugned comment, the Applicant was absent and was known to be absent from the hearing room. The Respondent submitted that the fact that the comments during his absence were made during the hearing and were recorded would render the comments less concerning to the fair-minded lay observer. However, the comments were made during the hearing, while the rules governing the interaction between the parties and the Tribunal are at their most formal. The fair-minded lay observer would have understood that the purpose of the hearing was to ensure that the parties could present their cases in an orderly and fair way. A departure from the generally accepted conduct in this respect involves a departure from the norms of professional conduct that would be relevant to the fair-minded lay observer.

31    It is not possible to know what the Member intended to convey by the impugned comments. Nor is it necessary to assess what was intended. As observed in Webb v The Queen [1994] HCA 30; 181 CLR 41 at 52 (Mason CJ and McHugh J), it is “the court’s view of the public’s view, not the court’s own view, which is determinative”. Accordingly, I must assess what the fair-minded lay observer would consider to have been conveyed by the impugned comment in the circumstances in which it was said. Counsel for the Respondent properly accepted that this was the core issue.

32    Having listened to the entirety of the hearing, I consider that the fair-minded lay observer would have understood:

(1)    that the hearing was part of a tribunal process that had fewer rules around evidence and procedure than the process of a court, but nonetheless had rules, procedures and practices to ensure fairness between the parties;

(2)    that it was necessary for the Member to communicate with the Minister’s representative in the Applicant’s absence about the logistics of restoring the connection with the Applicant; and

(3)    the general rule that decision-makers do not communicate about the substance of the case in the absence of the other party, and considered any statements about the merits of the proceeding in the absence of the other party to be an important departure from the ordinary standards of conduct.

33    The Respondent argued that the Tribunal’s comment “had nothing to do with the merits or the substance of the review, but related only to the running of the review”. It was submitted by the Respondent that the Member could not reasonably be understood as having indicated that the outcome of the matter was not challenging, and that the better view is that the Member’s comment could be understood only as a reference to the procedure or the running of the case (i.e., that it was not a very involved or procedurally complicated matter). This is said to follow from the fact that the matter was not procedurally complex and was set down for a single day with only two lay witnesses. The Respondent also relies upon an earlier comment by the Minister’s representative (in the presence of the Applicant) that he did not have many questions for the Applicant and that “[t]here’s not a lot of evidence in this matter”.

34    While the fair-minded lay observer would be aware that the matter was set down for one day, and that there were only two lay witnesses, I do not consider that these matters can properly be understood to confine the impugned comment to benign procedural matters. The fair-minded lay observer would be aware that the hearing concerned the operation of the Migration Act, and that the consequences of the proceedings for the Applicant were significant. When the matter involves a self-represented litigant in the context of complicated legislation, the comment that something is not “a particularly challenging matter” cannot be so easily quarantined away from the merits of the matter.

35    Hearing the comment in context, I consider that the fair-minded lay observer would have understood that the Member was speaking about the substantive complexity of the case before him, and not merely about logistical issues concerning the Applicant’s remote connection to the hearing. Indeed, I reject the Minister’s submission that the fair-minded lay observer who had listened to the repeated interruptions due to technical difficulties would consider that the Member was suggesting that dealing with those difficulties was not “particularly challenging”. It was clear in both the tone and words used that the Member was finding those matters quite challenging.

36    In addition, the words themselves most comfortably refer to the proceeding that was ongoing. A fair-minded lay observer would have understood that the reference to a “matter” in the circumstances referred to the substantive proceeding that the Member was hearing.

37    The impugned comment was made in response to the Minister’s representative seeking to assure the Member that the examination of the Applicant would not be much longer. The fair- minded lay observer would have understood that the Member was assuring the Minister’s representative that the matter was not challenging in the sense that it would not be difficult for him to reach a decision. In this respect, the fair-minded lay observer would have understood that the Member was indicating that he had already formed a view about the complexity and therefore the difficulty of the matter, even though he was only a quarter of the way through hearing it.

38    Critically, the comment was made in the absence of the Applicant. The fair-minded lay observer would have understood the comment to be a significant departure from the usual professional norms of practice. In combination with the meaning that they are likely to attribute to the comment, I consider that it is likely that, in all the circumstances, the fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of dispute.

39    In reaching this conclusion, I have considered whether the apprehension of the fair-minded lay observer is itself reasonable. I consider that it is. That is because discussion about the merits of a case by the decision-maker in the absence of one party is, itself, a significant matter. Thus, having accepted that the fair-minded lay observer would have understood that the impugned comment related to the merits of the case, it would be reasonable for the apprehension of bias to arise.

40    I accept that there are available interpretations of the impugned comment that may not ground an apprehension of bias. However, the interpretation that I have set out above is, in my view, the one that it is more likely that the fair-minded lay observer would have, having regard to all of the circumstances and the context in which the comment was made. However, even if I were satisfied that both possibilities were of equal probability, the existence of an equal possibility being that the fair-minded lay observer would consider the Member was commenting on the merits of the case in a manner that was adverse to the Applicant, in his absence, would be sufficient to meet the threshold established in the authorities (Simcoe at [58]-[59]).

41    It follows from these conclusions that the decision of the Tribunal must be set aside, and the matter remitted for determination in accordance with law.

Grounds 1 and 3

42    Grounds 1 and 3 each concern alleged defects concerning the reasoning undertaken by the Member, being:

(1)    By ground 1, the Applicant contends that the Tribunal failed to lawfully consider the representations he made in support of revocation – namely, that his family in Pakistan would be negatively impacted if the non-revocation decision were affirmed, due to his inability to support them financially.

(2)    By ground 3, the Applicant submits that the Tribunal reasoned irrationally, illogically or unreasonably in considering the “protection of the Australian community” and the “expectations of the Australian community”. It is said that the Tribunal failed to provide a logical or rational explanation for why heavy weight should be afforded to those factors in circumstances where the Tribunal found it likely that the Applicant would remain in Australia on a Bridging Visa R (BVR) due to the protection finding that applied to him.

43    The Applicant submitted that it is not necessary for the Court to consider other grounds if it considers that a reasonable apprehension of bias exists, pointing to Leo’o Olo at [3] where Rangiah J said:

The authorities indicate that where a ground of apprehended bias is upheld, the Court should not proceed to determine the remaining grounds: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at [2] and [117]; Jorgensen v Fair Work Ombudsman [2019] FCAFC 113 at [161]-[163]; Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530 (Gambaro) at [48]. Accordingly, these reasons only deal with the apprehended bias ground.

44    However, there is some divergence between the authorities which say that a finding of bias requires no further consideration of alternative grounds, and others which do not take that approach. The high-water mark of each line of reasoning is:

(1)    In Jorgensen, the Court (Greenwood, Reeves and Wigney JJ) said (at [163]) that, where a successful apprehended bias ground is accompanied by other grounds that would warrant remittal (rather than substantive relief), it is “permissible and appropriate” for all grounds to be considered.

(2)    In Gambaro, the Court ((Greenwood and Rangiah JJ) said (at [48]) that, if an apprehended bias ground is upheld, no other grounds should be considered.

45    I observe that various cases, without expressly considering this issue, appear to have taken the approach adopted in Jorgensen – that is, to consider all substantive grounds which, if successful, would warrant remittal (see, e.g., Bhatti; FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456; Doshi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1026).

46    Acknowledging this divergence, and the approach of the cases involving this issue, grounds 1 and 3 can be briefly dealt with, and so I have set out my reasons below.

Ground 1

47    The Applicant submitted to the Tribunal in a range of ways that his family in Pakistan relied upon his income in Australia. For example, in his statement, he said that he had “always worked hard to support [his] parents and siblings who remain in Pakistan”. Statements to similar effect were repeated in various parts of the material, including reference to his family struggling financially without him. Prior to the conclusion of the matter, the Applicant submitted that:

And your Honour, I’ve got five sisters and two girls, and my parents all, you know, they are out of connection, so I’m only the man to work hard and send them my money back to get my second education, and my parents, they can’t work. So at the moment, it’s really hard for them by financially, and I know I live in Melbourne, but yes.

48    The Applicant relies upon the principles articulated in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 (Plaintiff M1) at [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ) and argues that the Tribunal was required, but failed, to understand and evaluate the representations made by the Applicant that were substantial and clearly articulated or clearly emerged. It is said that the issue that clearly emerged here was that “another reason” to revoke the decision to cancel the Applicant’s visa was the negative financial impact that the Applicant’s family would face in Pakistan if their son was no longer able to provide for them by working in Australia. It is said that the Tribunal failed to evaluate the claims about the impact on his family in Pakistan, and that omission is an error in the sense identified in Plaintiff M1.

49    I accept that a claim of the kind now articulated by the Applicant was made before the Tribunal. However, it is important not to read the reasons with an eye keenly attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ), 291 (Kirby J)). In particular, I note that:

(1)    The Tribunal noted at the outset of its decision that the Applicant’s parents and family were financially supported in Pakistan by the Applicant. In this respect, it can be seen as a part of the factual circumstances on which the case proceeded.

(2)    The Tribunal noted that the Applicant had a strong motivation to be in a position to continue to provide support to his family in Pakistan.

(3)    The Tribunal accepted the likely financial hardship for the Applicant if he were returned.

50    It is therefore clear that the Tribunal was aware that the Applicant’s family in Pakistan would suffer financial hardship if the Applicant did not obtain a visa and, in this sense, it was part of the overall analysis carried out by the Tribunal. The Applicant’s concern focuses in effect on the manner and the weight afforded to the consideration in a manner can, in some instances trespasses into the merits of the issue (ECE21 v Minister for Home Affairs [2023] FCAFC 52; 297 FCR 422 at [8] (Mortimer, Colvin and O'Sullivan JJ)).

51    Accordingly, were it necessary to do so, I would dismiss the first ground.

Ground 3

52    Ground 3 concerns the Tribunal’s assessment of the two primary considerations in Ministerial Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction), being “Protection of the Australian Community” and “Expectations of the Australian Community”. The Applicant contends that the Tribunal’s decision was affected by irrational, illogical or otherwise legally unreasonable reasoning with respect to its assessment of the need to protect the Australian community and the community’s expectations (See JMNR v Minister for Immigration and Citizenship [2026] FCA 50 (JMNR) at [107] (Colvin J)).

53    It is not in dispute that it was open to the Tribunal to find that the Applicant had engaged in very serious offending or that he presented an unacceptable risk of reoffending. The difficulty is said to be that:

… the Tribunal accorded heavy weight against the Applicant and in favour of non-revocation when assessing the need to protect the Australian community and in applying its deemed expectation, without providing a logical or rational explanation of why that was so in the particular circumstances of the Applicant’s case (being an NZYQ-affected non-citizen).

54    This ground echoes the arguments considered in JMNR and KFTJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 958 (KFTJ). In those cases, the Tribunal (in JMNR) and the Minister (in KFTJ) were said to have accorded heavy weight against the Applicant and in favour of non-revocation when assessing the need to protect the Australian community and in applying its deemed expectation. In both cases it was said that there was not a logical or rational explanation for the approach taken by the decision maker in circumstances where the individual under consideration was a member of the cohort of persons identified in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137, meaning that cancellation of their visa would not result in their detention or removal.

55    Two days after this matter was heard, the Full Court handed down its decision in the appeal from KFTJ (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v KFTJ [2026] FCAFC 52; 316 FCR 273 (KFTJ FC). The Court in KFTJ FC (Perry, Kennett and Shariff JJ) rejected the Minister’s appeal from the decision of the trial judge that the Minister’s reasoning in relation to the above factors was “legally unreasonable” (KFTJ at [3] (Wigney J)). Relevantly, their Honours held (at [46]) that there was no basis for an assumption that the respondent would be subject to visa conditions that would serve to protect the community in circumstances where the Minister:

(1)    expressly did not speculate on the likelihood of a Minister (including himself) intervening or the consequences of any such intervention (KFTJ FC at [23], [48]); and

(2)    elected to refer a decision to consider whether to grant the applicant a BVR to a delegate at the time of signing the Statement of Reasons (KFTJ FC at [45]-[46]).

56    The Full Court upheld Wigney J’s conclusion that the Minister’s reasons provided “no account of how any identified ‘expectations’ of the Australian community would be met by cancelling the Respondent’s visa” (KFTJ FC at [55]).

57    It is said that the gap in logic or rationality in the Tribunal’s reasons in this case is effectively the same as in the Minister’s reasons as identified in KFTJ (and upheld in KFTJ FC). The similarity was identified in the submissions as follows:

First, both decision-makers considered that there was a need to protect the Australian community from the non-citizen and that this weighed adversely. Second, both decision-makers considered that the Australian community would expect that the non-citizen not be permitted to remain in Australia, and this weighted adversely… Third, each decision-maker recognised at least the likelihood of the non-citizen being released into the community because they were NZYQ-affected…

58    It is clear that the Tribunal was aware that the Applicant would likely remain in the community and that he would be assessed for eligibility for the grant of a BVR. The Tribunal also expressed uncertainty as to the conditions that would be imposed upon to any BVR. In Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45; 315 FCR 435 (SSJV), the Minister reasoned that it was likely that the applicant would not be taken into custody, and said that he would separately consider the type of visa on which he should reside and conditions to be imposed following further advice from the Department (see at [12] (Perry, Kennett and Shariff JJ)).

59    Ultimately, each case turns on its own facts, and it is difficult and unhelpful to seek to apply the circumstances prevailing in one proceeding to another (KFTJ FC at [43]). That position is even more so when considering legal unreasonableness – a matter which is “not amenable to minute and rigidly-defined categorisation or a precise textual formulary” (KFTJ at [80] (Wigney J), citing Minister for Immigration & Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [10] (Allsop CJ)).

60    Ultimately, the Applicant relied upon the heavy weight afforded by the Tribunal to the protection of the Australian community being served by the non-revocation decision in the absence of analysis about how that would be achieved if the Applicant were to be released into the community.

61    The particular findings the subject of this ground concerned the mandatory requirements of “protection of the Australian community” and “expectations of the Australian community”. In respect of each, I note:

(1)    In the section of the decision considering the “expectations of the Australian community”, the Tribunal recounts the substance of the Direction, noting its deemed community expectation that a non-citizen who engaged in serious conduct in breach of the law will not be permitted to remain in Australia. The Tribunal then analysed and concluded that DKCQ’s offending was very serious and involved a measurable risk of reoffending that is unacceptable, and that it is conduct of a kind which the Direction identifies as raising serious character concerns. In the context of the Direction and the reasons read as a whole, the conclusion that this is a factor that weighs heavily against revocation may be understood.

(2)    In the section considering the “protection of the Australian community”, the Tribunal observed that the Applicant had engaged in offending that is considered very serious. The Tribunal considered the risk of reoffending and found it to be low for general offending, but somewhere between low and moderate for sexual offending. Given the seriousness of the offending, the latter risk was considered by the Tribunal to be unacceptable. This weighed heavily against revocation.

62    The Applicant submitted that the Tribunal’s failure to explain how the community would be protected by non-revocation of the decision to cancel the Applicant’s visa reveals a sufficiently clear and significant gap in logic to demonstrate legal unreasonableness and jurisdictional error.

63    In the present case, the Applicant was in custody at the time that the decision was made. The Respondent submitted that there was uncertainty as to what might happen to the Applicant at the end of his sentence which made it less clear in this case that the Applicant would not be removed from Australia.

64    In this case, the Tribunal specifically adverted to the effect of the Applicant being issued a BRV in the following terms:

Release on bridging visa

As noted above, the Respondent contends that DKCQ is eligible for the grant of a BVR, and will likely be released into the community. I raised this with the Applicant at the hearing in order that he appreciated this as a possible, if not likely, course. DKCQ in turn submitted that release on a bridging visa would affect his mental health. He also stated that he considered it may affect his access to health services and employment. In short, DKCQ contended that a permanent visa is better for his rehabilitation overall.

There is a degree of speculation involved in considering DKCQ’s release into the community, in addition to the ongoing uncertainty about his release on parole, noted above. The main uncertainty relates to the conditions that will be applied to any bridging visa, noting of course that the Applicant is already required to comply with a reporting regime associated with his registration as a sex offender, and probably also for his parole.

Nonetheless, I consider that some weight in favour of revocation can be given to the fact that a bridging visa is temporary, and a BVR is intended also to apply pending removal. There is some possibility that removal might be to a third country, albeit this too remains a matter of speculation.

On balance I give this additional other consideration moderate weight in favour of revocation.

65    I accept that when the reasons are considered holistically, and without an eye keenly attuned to error, the Tribunal engaged with the relevant questions and did not reason in an illogical or unreasonable way. The Tribunal pointed to the fact that a BVR was a more temporary visa, and that additional conditions may be applied to it.

66    The Tribunal concluded that the protection and expectations of the Australian community weighed against revocation. There was no illogicality in that conclusion given that it was expressed in terms that were generally reflective of the terms of the Direction and in an overall context in which the Tribunal demonstrated an understanding of the likelihood of the Applicant remaining in Australia on a BVR. It is relevant in this respect that a BVR is not the same as the return of the Applicant’s visa. The BVR is susceptible to immediate cessation upon the Minister giving notice of his satisfaction that the appellant’s removal from Australia is reasonably practicable (XKTK v Minister for Immigration and Multicultural Affairs [2025] FCAFC 115; 311 FCR 359 (XKTK) at [30] (Wheelahan J)). In particular, as Wheelahan J said in XKTK (at [51]):

As I have explained earlier, the Minister’s cancellation of the appellant’s visa in the national interest on character grounds ensured that the appellant was liable to be removed from Australia, even if removal was not reasonably practicable at the time of the decision. As I identified at [17] above, to render a person liable to removal is the purpose of the power of cancellation in the national interest on character grounds under s 501BA(2). Having regard to the purpose of s 501BA(2), it cannot be said that the Minister’s reasoning, which was directed to the circumstances and consequences of the appellant’s offending that provided the occasion for the exercise of the power, and to the protection of the Australian community and community expectations, was irrational, illogical or unreasonable. If, as the Minister recognised, removal was not reasonably practicable at the time of the decision, then the terms of the Act directed the Minister and eligible non-citizens to other visas with different terms and with protective conditions. The Minister’s reasons at [70] specifically contemplated that the appellant would be issued with a visa subject to conditions that would be the subject of further consideration by the Minister. It was with regard to these consequences that the Minister determined that it was in the national interest to cancel the appellant’s protection visa.

67    Moreover, the Tribunal took into account that the terms of the BVR were uncertain. That uncertainty is consistent with the weight afforded by the Tribunal to those factors. In this respect, this case more closely resembles SSJV and in particular the comment made by their Honours that there is no illogicality or inconsistency in cancelling a visa that granted the non-citizen the right to remain in Australia in circumstances where the non-citizen will remain in Australia but on a visa that is designed to facilitate their removal when practicable (at [33] (Perry, Kennett and Shariff JJ), quoting XKTK at [113] (Stewart and Needham JJ)). The focus upon the conditions (and the variation available in relation to those conditions) is similar to SSVJ.

68    It follows that there is no relevant illogicality or unreasonableness disclosed in the Tribunal’s reasoning. I would therefore dismiss ground three.

Leave to add a further ground

69    By supplementary submissions, leave was sought to add a further ground arising from KFTJ FC. However, given the conclusion in relation to ground 2, it is not appropriate to grant leave to consider a further ground, even if it were appropriate to do so following the close of submissions.

Conclusion and disposition

70    The Applicant has been successful in relation to ground 2. No question of materiality can arise when a ground of apprehended bias is established. It is therefore appropriate that the matter be remitted to a differently constituted Tribunal to be determined in accordance with law.

71    In light of my conclusions, the costs of the application should be paid by the First Respondent, subject to any contrary submission.

Associate:

Dated:    7 August 2026