Federal Court of Australia

JRX25 v Minister for Immigration and Citizenship [2026] FCA 1170

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

DOWLING J

Introduction and background

1    The applicant seeks judicial review of a decision of the Administrative Review Tribunal not to revoke the decision of a delegate of the Minister for Immigration and Multicultural Affairs to cancel the applicant’s Class XB subclass 204 Woman at Risk visa.

2    The applicant is a citizen of Liberia and arrived in Australia in 2008 at age 11. His visa was granted in connection with his mother’s visa. In October 2024, when aged 28, the applicant was convicted of offences for which he received a total effective sentence of two years and 11 months’ imprisonment. Those offences included reckless conduct endangering serious injury, recklessly causing injury, contravening a conduct condition of bail, and committing indictable offences whilst on bail.

3    On 10 December 2024, a delegate of the Minister cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth). On that same day, the applicant made representations that the cancellation of his visa should be revoked. On 13 May 2025, a delegate of the Minister determined under s 501CA(4) of the Act not to revoke the cancellation.

4    The applicant applied to the Tribunal for a review of the delegate’s non-revocation decision. The applicant also requested that the Tribunal make an order under s 70 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) that he be identified by a pseudonym in the Tribunal’s proceedings and in its written decision. On 31 July 2025, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of the visa and refused the applicant’s request for a pseudonym.

5    For the reasons explained below, the applicant’s application for review of the Tribunal’s decision is dismissed.

The grounds of review

6    By his amended originating application for review the applicant raises two grounds.

7    First, he alleges that the Tribunal fell into jurisdictional error by concluding that the legal consequences of the decision under review should be afforded “neutral weight”. By his written submissions that complaint is put in four ways. Namely, the Tribunal (1) failed to have regard to “the possibilities of the Applicant being subject to the BVR [Bridging Visa R] regime, placed in immigration detention for a considerable period, or removed to a third country”; (2) took into account irrelevant considerations by having regard to the possibility of “the grant of a visa under s 195A of the Act” to the applicant and the possibility of an appeal from its decision; (3) acknowledged, but failed to factor in, that the applicant “would fall to be detained and subject to removal from Australia at the earliest opportunity post-sentence”; and (4) concluded that the legal consequences of the decision should be afforded “neutral weight” and in doing so demonstrated a “path of reasoning” that “was unintelligible”.

8    Second, he alleges that the Tribunal erred in refusing his request to be identified by a pseudonym. The applicant complains that refusal was “illogical or unreasonable”.

Relevant statutory provisions

The Minister’s power to cancel the visa and the power to revoke that decision

9    Section 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. That substantial criminal record includes where the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

10    Section 501CA(4) of the Act provides that the Minister may revoke the decision made under s 501(3A), following the receipt of representations from the person about revocation of the original decision, if the Minister is satisfied (i) that the person passes the character test (as defined by s 501); or (ii) that there is another reason why the original decision should be revoked.

The Tribunal’s power to review the Minister’s decision

11    Section 500(1)(ba) of the Act provides that a party may apply to the Tribunal for review of a decision of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

12    In reviewing a decision under s 501CA(4), the Tribunal must comply with ministerial directions made under s 499 of the Act. Here that is Direction no. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

The Tribunal’s power to make a pseudonym order

13    Section 69 of the ART Act provides a “General rule” that the substantive hearing of a proceeding in the Tribunal must be in public.

14    By s 70(1)(a)(i) of the ART Act the Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of information tending to reveal the identity of a party to or a witness in a proceeding in the Tribunal.

15    In considering whether to make an order under s 70 the Tribunal must have regard to the considerations set out in s 71(2) of the ART Act. They include: the principle that it is desirable that hearings of the proceedings in the Tribunal are held in public; that it is desirable that evidence given before the Tribunal is made available to the public; that it is desirable that evidence given before the Tribunal and the contents of documents given to the Tribunal are made available to all the parties to the proceeding; and any reasons in favour of making an order, including the circumstances of the parties, the harm likely to occur if the order is not made and the confidential nature of the information.

The Tribunal’s decision

16    The Tribunal’s decision was accompanied by detailed and lengthy reasons. Much of those reasons are not relevant to the grounds of review. However, from [121] to [139] the Tribunal addressed the legal consequences of the decision. Those paragraphs are relevant to ground one. From [11] to [19] the Tribunal addressed the application for a pseudonym. Those paragraphs are relevant to ground two. Those paragraphs are summarised below.

The Tribunal’s decision on legal consequences

17    At [121] the Tribunal set out para 9.1 of Direction 110. That paragraph is titled “Legal consequences of decision under section 501 or 501CA”. At [124(a) to (i)] the Tribunal set out the applicant’s submissions as to why “the legal consequences in the matter weigh determinatively in favour of revocation”. Those submissions included at [124(a) to (c)]:

(a)    Australia owes international non-refoulement obligations to the applicant “because there is no place in Liberia he would be ‘safe from serious and significant harm’”, and there is “no effective protection available from Liberian authorities, and no safe third country to enter or reside in”;

(b)    the applicant’s evidence does not demonstrate any protection findings having been made in respect of the applicant and the applicant has not applied for a protection visa; and

(c)    if the decision is not revoked the applicant will face the legal consequences of “forcible return to Liberia; or protracted detention with the future potential for release on a BVR with onerous conditions; or third country removal at an undetermined time”.

18    At [125] the Tribunal extracted the applicant’s written submissions regarding the fear he holds about possible return to Liberia. That extract runs for over six pages. At [126] the Tribunal summarised the Minister’s submissions on the legal consequences of non-revocation. The Minister submitted that in the event of non-revocation the applicant will continue to be an unlawful non-citizen and be liable for removal from Australia as soon as reasonably practicable, “noting that for the purposes of s 198 [of the Act] it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”. The Minister also said that “a protection finding within the meaning of s 197C(5) of the Act has not yet been made for the Applicant, who therefore falls under para 9.1.2 of the Direction. He is entitled to apply for a protection visa, and it is submitted the Tribunal should defer assessment of his claims consistent with the High Court authority in Plaintiff M1/2021 [v Minister for Home Affairs [2022] HCA 17; 275 CLR 582]”. Lastly, at [126], the Tribunal set out the Minister’s submission that the applicant’s contention about the future course of events, “including the prospects of a protection visa succeeding, or that Australia will breach its international obligations, or that irreparable harm would be caused by a non-revocation decision, is overly speculative”.

19    Following the summary of those submissions the Tribunal relevantly set out its findings at [127] to [139] under the heading “Tribunal findings: Legal Consequences of the Decision”.

20    The Tribunal recognised that “[i]n the event of non-revocation, the Applicant is liable to be detained under s 189 of the Act and then removed [from Australia] as soon as reasonably practicable”. The Tribunal observed that the length of detention would depend on a range of possibilities including: an appeal from the Tribunal’s decision; the applicant applying for a protection visa; the applicant seeking an exercise of the power under s 195A of the Act; the applicant being the subject of a residence determination under s 197AB of the Act; the applicant being removed to a third country; or the applicant electing to be returned to Liberia. The Tribunal found that “[t]here is no evidence any of these possibilities are currently in prospect”: [129].

21    The Tribunal found the applicant’s submission that the length of detention may be indefinite or prolonged was “speculative and unpersuasive” given that the applicant’s term of imprisonment was ongoing and because, if detention was to occur at an indeterminate future time, that detention would be considered “with reference to the High Court’s decision in NZYQ [v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137]”: [132].

22    The Tribunal determined the applicant’s submission that the applicant could in the future be released on a BVR with onerous and restrictive conditions to likewise be speculative and unpersuasive because that outcome would “likely require him to lodge a protection visa application and succeed in having a protection finding made in his favour”. The Tribunal stated that any conditions imposed on the applicant in respect of any BVR “would be based on an assessment at that unknown future time” and so was not an outcome proximate to a decision in the matter before the Tribunal: [134]. It also found the applicant’s “submissions about a future prospect of involuntary removal to Nauru, to again be overly speculative, not proximate to a decision in the present matter, and not considered further”. The Tribunal observed that it was “inconstant” that the Tribunal was invited to speculate on outcomes at unknown future times “while concurrently being told it was ‘impermissibly speculative’ to consider the Applicant would lodge a protection visa”: [135].

23    The Tribunal concluded that “[g]iven the scale of the non-refoulement claims and supporting materials advanced by the Applicant and [his] claim that these ‘incontrovertibly’ establish non-refoulement obligations” it was logical to infer that the applicant “would make a protection visa application should there be a non-revocation decision” and that “there is no persuasive evidence that this would be considered other than on its merits”. The Tribunal did not accept that there was a risk of involuntary return even if a protection finding was made in the applicant’s favour and considered that it was not “an event even remotely proximate to the Tribunal’s decision in the current matter”: [136].

24    The Tribunal accepted that “[i]rrespective of how future events evolve, non-revocation would be an adverse outcome for the Applicant” because his aspirations to remain in Australia, access the NDIS and pursue other opportunities “would likely end unless he succeeded with a different application”. Adopting the reasoning in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Flick J) (as adopted by Griffiths J in DOB18 v Minister for Home Affairs [2018] FCA 1523) which related to “the need to avoid speculation as to what might or might not occur in future decision-making”, the Tribunal determined that it was not required to engage in speculation about uncertain future events: [137]-[138].

25    Lastly, the Tribunal concluded that, given the complexity of the applicant’s claims and the limited timeframe in which to decide the matter, it should “defer assessment of [the applicant’s] non-refoulement claims”. It concluded this paragraph, which was the last under the heading “Legal consequences of the decision” and subheading “Tribunal findings: Legal Consequences of the Decision”, by stating: “Neutral weight is placed on this consideration”: [139]. It is apparent from the way the Tribunal expressed its conclusions in relation to the remaining “other considerations” under Direction 110 (at [147], [148]) that its conclusion at [139] by reference to “this consideration” refers to neutral weight being placed on the overall consideration of “legal consequences of the decision” (not the specific consideration mentioned in [139] of non-refoulement claims). The parties did not suggest otherwise.

The Tribunal’s decision on the pseudonym

26    At [11] the Tribunal set out the correspondence from the applicant’s solicitor to the Tribunal requesting that a confidentiality order be applied to the applicant’s case. The Tribunal considered its statutory power to make such an order.

27    The Tribunal then referred to: first, the fact that the sentencing remarks of the County Court in relation to the applicant identify him by name and refer to details about him including his personal circumstances in Liberia and Australia; and second, the fact that the applicant lodged a significant volume of material in the Tribunal without having first obtained a confidentiality order and it was not clear what more might be advanced if a confidentiality order were made: [17]-[18].

28    The Tribunal concluded that the reasons advanced for a confidentiality order were “insufficiently cogent to depart from the default position of a public hearing and public availability of evidence”. The Tribunal refused the applicant’s request but directed that the publication of its reasons be withheld for 35 days after being given to the parties in order to preserve the applicant’s anonymity pending any appeal on the confidentiality issue: [19].

Ground one – was there an error in affording the legal consequences neutral weight?

29    As explained, the error alleged by ground one was put in four ways. Namely, that the Tribunal (1) failed to have regard to “the possibilities of the Applicant being subject to the BVR regime, placed in immigration detention for a considerable period, or removed to a third country”; (2) took into account irrelevant considerations by having regard to the possibility of “the grant of a visa under s 195A of the Act” to the applicant and the possibility of an appeal from its decision; (3) acknowledged, but failed to factor in, that the applicant “would fall to be detained and subject to removal from Australia at the earliest opportunity post-sentence”; and (4) concluded that the legal consequences of the decision should be afforded “neutral weight” and in doing so the Tribunal’s “path of reasoning was unintelligible”. I deal with each of those allegations below. However, before doing so I set out what were the agreed principles for the approach to the consideration of the legal consequences of the decision.

Principles on approach to legal consequences

30    Paragraph 9.1 of Direction 110 relevantly provides that, in making a decision under s 501CA(4) of the Act, the Tribunal is required to take into account the legal consequences of its decision.

31    That obligation is consistent with the broader requirement that, in making a decision under the Act, a decision-maker must take into account the legal consequences of the decision, and specifically, the “direct and immediate statutorily prescribed consequences of the decision in contemplation”: Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84] (Kenny, Flick and Griffiths JJ); NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [8]-[9] (Allsop CJ and Katzmann J), [153] (Buchanan J); Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 at [17]-[19] (Rangiah J).

32    In a review concerning the exercise of the power in s 501CA(4) of the Act, the Tribunal is also required to take into account the representations made by the applicant seeking review. This requires the Tribunal to read, identify, understand and evaluate the representations, and bring its mind to bear on them: Plaintiff M1 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ).

33    Further, in taking into account the legal consequences of its decision, and the representations made by the applicant seeking review, the Tribunal is required to act within the bounds of rationality and reasonableness: Plaintiff M1 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ).

34    Where an applicant seeking review, who has not previously applied for a protection visa, makes representations to the effect that his or her removal would be contrary to Australia’s international non-refoulement obligations, the Tribunal is permitted to defer assessment of whether those obligations are engaged on the basis that it is open to the applicant to apply for a protection visa: Plaintiff M1 at [30] (Kiefel CJ, Keane, Gordon and Steward JJ).

35    If the Tribunal decides to defer assessment of whether Australia’s international non-refoulement obligations are engaged, it must still consider the other legal consequences of its decision, and the other representations made by the applicant seeking review, including about the harm the applicant may face if removed to their home country: Plaintiff M1 at [39]-[40] (Kiefel CJ, Keane, Gordon and Steward JJ); Singh at [40] (Rangiah J).

36    When considering the other legal consequences of its decision, and the other representations made by the applicant seeking review, the Tribunal is not required to speculate about future possibilities with respect to future visa applications or the duration of any detention to which the applicant may be subject: RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [32], [37] (Nicholas, Yates and Burley JJ), referring to Ali at [33] (Flick J) and DOB18 at [35] (Griffiths J). See also XPLW v Minister for Immigration and Multicultural Affairs [2026] FCA 210 at [53], [59] (Horan J).

37    Once the Tribunal has considered the legal consequences of its decision, and the representations made by the review applicant, it is a matter for the Tribunal to determine what weight to give to those matters, subject to principles of legal unreasonableness: Plaintiff M1 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ). See also Singh at [33] (Rangiah J) and XPLW at [49] (Horan J).

38    Lastly, if the Tribunal does not make a finding about the likelihood of particular consequences occurring, on the basis that the likelihood of those consequences is a matter of speculation, it is open for the Tribunal to afford no weight to those consequences: RRFM at [36]-[37] (Nicholas, Yates and Burley JJ); CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCA 480 at [56]-[59] (Raper J); CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCAFC 199 (CMP25 FCAFC) at [27]-[28], [30] (Perry, Cheeseman and Shariff JJ); XPLW at [53]-[59] (Horan J). In CMP25, Raper J explained that Rangiah J’s decision in Singh does not stand for any contrary proposition regarding weight to be afforded to matters that are uncertain or a matter of speculation: [58]-[59]. However, Singh, NBMZ and Taulahi draw attention to the direct and immediate statutorily prescribed consequences of the decision. I return to Singh in more detail below. It is important to appreciate that the legal consequences of a non-revocation decision include that the applicant will be an unlawful non-citizen who does not hold a valid visa and is therefore liable to detention under s 189 of the Act. That consequence itself might be certain, however other decisions and choices might produce consequences that are uncertain or speculative, including whether the applicant is ultimately detained.

Did the Tribunal fail to have regard to relevant matters?

39    The applicant complains that the Tribunal failed to have regard to “the possibilities of the Applicant being subject to the BVR regime, placed in immigration detention for a considerable period, or removed to a third country”.

40    As described above, at [124(c)] the Tribunal set out the applicant’s submission that if the decision is not revoked, he will face the legal consequences of “forcible return to Liberia; or protracted detention with the future potential for release on a BVR with onerous conditions; or third country removal at an undetermined time”. Likewise, at [130] the Tribunal referred to the applicant’s closing submissions addressing “the Tribunal’s concerns, conveyed at the commencement of the hearing, regarding the Applicant’s contention that at some future stage he will be taken into immigration detention, which is variously referred to as ‘indefinite’ or ‘prolonged’ with no know[n] end point. At a further unknown future time it is submitted the most likely course is for him to be released on a BVR” (emphasis in original).

41    At [132]-[133] the Tribunal concluded that it found “references to the applicant potentially being subjected to indefinite detention or prolonged detention with no known end point to be speculative and unpersuasive”. It reasoned that a decision about detaining the applicant “is not a direct consequence of a decision in the present matter and remains subject to the irresoluble branches and sequels of future events”. Whilst the Tribunal refers to “a decision” about detaining the applicant, I understand that to encompass the consequence that a non-revocation decision renders the applicant liable to detention under s 189 of the Act (as acknowledged by the Tribunal at [129]) and decisions that might be made about a protection visa, a BVR or removal, which impact whether the applicant is detained.

42    As to the duration of detention, the Tribunal reasoned that if detention “occurs at some indeterminate future time” the duration “must now also be considered with reference to the High Court’s decision in NZYQ”. The Tribunal had earlier made a finding that NZYQ “stands for the proposition that the executive Government has no Constitutional power to authorise the indefinite detention of unlawful non-citizens in circumstances where there is no real prospect of removal becoming practicable in the reasonably foreseeable future”.

43    At [134] the Tribunal concluded that it found “the Applicant’s contentions about the probability of future release on a BVR with ‘a minimum of 20 onerous and restrictive conditions’ to be overly speculative and unpersuasive” (emphasis in original). And at [135] the Tribunal concluded that it found the applicant’s submissions about a future prospect of involuntary removal to Nauru, to “again be overly speculative, not proximate to a decision in the present matter, and not considered further”.

44    I do not accept that the Tribunal failed to have regard to the possibilities of the Applicant being subject to the BVR regime, placed in immigration detention for a considerable period, or removed to a third country. The extracts above sufficiently demonstrate that regard was had to those matters. No jurisdictional error is shown by this part of ground one. Whether the conclusions reached about those matters were within the bounds of reasonableness is considered below.

Did the Tribunal take into account irrelevant considerations?

45    The applicant complains that the Tribunal took into account irrelevant considerations by having regard to the possibility of an appeal from its decision, or the grant of a visa under s 195A of the Act.

46    As explained, at [129] and under the subheading “Tribunal findings: Legal Consequences of the Decision”, the Tribunal determined that “[i]n the event of a non-revocation decision, the Applicant is liable to be detained under s 189 of the Act and then removed as soon as reasonably practicable”. The Tribunal then went on to address other possibilities. Also at [129], the Tribunal said “both sides would have appeal rights in the Federal Court irrespective of the Tribunal’s decision” and that “[o]ther possibilities include a non-citizen asking for an exercise of a non-compellable Ministerial discretion under s 195A of the Act”. However, at the next sentence the Tribunal concluded, “[t]here is no evidence any of these possibilities are currently in prospect”.

47    I am satisfied that the Tribunal did not reason on the basis of those matters, or in other words, take them into account. That is reinforced by the Tribunal’s conclusion at [132]-[133] that detention and its duration were to be considered “with reference to the High Court’s decision in NZYQ”. In other words, the conclusion was based on NZYQ rather than a potential appeal or s 195A possibilities, both of which were said to not be possibilities in prospect. No jurisdictional error is shown by this part of ground one.

Did the Tribunal fail to factor in the applicant’s potential detention and removal?

48    The applicant complains that the Tribunal acknowledged, but failed to factor in, that the applicant would fall to be detained and subject to removal from Australia at the earliest opportunity post-sentence.

49    Again, at [129] and under the heading “Tribunal findings: Legal Consequences of the Decision”, the Tribunal determined that “[i]n the event of a non-revocation decision, the Applicant is liable to be detained under s 189 of the Act and then removed as soon as reasonably practicable. There is no current evidence that removal is not reasonably practicable”. Other possibilities were then discussed but effectively disregarded, because there was no evidence any of them were “currently in prospect”.

50    Consistently, at [137], the Tribunal commenced, “[i]rrespective of how future events evolve, non-revocation would be an adverse outcome for the Applicant”. I do not accept that the Tribunal failed to “factor into” its conclusion the applicant’s removal and detention. It seems the real complaint made by this part is that by acknowledging this matter, and then placing “neutral weight” on the consideration, it suggests that it was not “factored in” at all. That approach overlaps with part four of ground one and the allegation that by affording neutral weight the reasoning was “unintelligible”. That submission is considered immediately below.

Was the Tribunal’s decision to afford neutral weight unreasonable or unintelligible?

51    By his last contention the applicant complains that by concluding that the legal consequences of the decision should be afforded neutral weight the Tribunal’s path of reasoning was unintelligible. This complaint assumed the most significance amongst the parts to ground one.

52    There was no dispute that the Tribunal, at [139], gave “neutral weight” to the legal consequences of the decision. The relevant aspects of the decision are then the Tribunal’s findings that:

(1)    “[i]n the event of a non-revocation decision, the Applicant is liable to be detained under s 189 of the Act and then removed as soon as reasonably practicable” ([129]);

(2)    “[t]he references to the Applicant potentially being subjected to indefinite detention or prolonged detention with no known end point to be speculative and unpersuasive” ([132]);

(3)    “the Applicant’s submissions about a future prospect of involuntar[y] removal to Nauru, to again be overly speculative, not proximate to a decision in the present matter, and not considered further” ([135]);

(4)    “it seems a logical inference that [the applicant] would make a protection visa application should there be a non-revocation decision”, but that “the outcome of any such future application cannot be speculated upon” ([136]); and

(5)    “[i]rrespective of how future events evolve, non-revocation would be an adverse outcome for the Applicant … unless he succeeded with a different application. The Tribunal is not required to engage in speculation about uncertain future events” ([137]) (emphasis added).

53    I understand that the Tribunal’s acknowledgement of the consequence of being “liable to be detained” and removed, was considered together with the inference that a protection visa application will be made, and together with a reluctance to speculate about uncertain future events. That is the balance that appears to have led to the allocation of neutral weight to the legal consequences of the decision.

54    The Minister says the Tribunal’s path of reasoning was essentially the same as adopted by the decision makers in RRFM, CMP25 and XPLW. The applicant relies on the reasoning of Rangiah J in Singh. It is necessary to explain those, and related, relevant authorities.

DOB18 v Minister for Home Affairs

55    In DOB18 Griffiths J considered an application for judicial review of the Minister’s decision to cancel the applicant’s visa under s 501BA of the Act (and not s 501CA(4) as in the present case). Section 501BA confers a personal and discretionary power on the Minister to set aside a decision of a Ministerial delegate or the ART which revoked the cancellation of a visa, and substitute for it a decision to cancel the visa, if the Minister is satisfied that the visa holder does not pass the character test and the cancellation is in the national interest. In his statement of reasons, the Minister in DOB18 stated that it was unnecessary for the purpose of the s 501BA decision to determine whether non-refoulement obligations were owed to the applicant because any such obligations would be considered in the context of a protection visa application, should the applicant make one: [25].

56    One of the jurisdictional errors alleged in DOB18 was that the Minister’s satisfaction under s 501BA(2)(b) of the Act was arrived at on an incorrect assumption. Namely, the Minister’s view that if non-refoulement obligations were assessed as being owed to the applicant, he would not be removed from Australia in breach of the obligations. The applicant contended that there was a real likelihood that any visa application made by him would fail and as a consequence he would be removed from Australia irrespective of the outcome of any non-refoulement assessment.

57    At [34]-[35] Griffiths J cited with approval Flick J’s decision in Ali at [33] where Flick J stated:

The prospect that future decision-making may confront the Minister with difficult choices ... cannot presently impact upon the present exercise of the power conferred by s 501CA(4).

58    Justice Griffiths noted that Flick J was referring to the potential for the applicant in Ali to apply in the future for a visa (including a protection visa), which may mean a future decision-maker would need to determine whether such an application should also be refused on the basis of character concerns: see DOB18 at [34]. Justice Griffiths stated that Flick J’s reasoning in Ali was “plainly correct” and “properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making, when considering a judicial review challenge to a particular exercise of power in what might potentially be part of a wider process of decision-making”: see DOB18 at [35]. Again, it is important to appreciate the potential difference between the immediate and direct legal consequence of a non-revocation decision, being made liable to detention under s 189 of the Act, and other decisions and choices that might produce consequences that are uncertain or speculative, including whether the applicant is ultimately detained.

59    In the present application, the Tribunal relied upon Ali and DOB18. The Minister submits that Griffiths J’s statement in DOB18 expressly endorsed the Tribunal’s approach of not speculating about any of the potential courses of future decision-making that the applicant sought to rely on.

RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

60    In RRFM, the Full Court determined an appeal from a decision dismissing an application for review of a decision of the Administrative Appeals Tribunal (AAT) made under s 501CA of the Act not to revoke the mandatory cancellation of the appellant’s visa. The issue before the Full Court was whether the AAT’s decision was affected by jurisdictional error because the AAT failed to consider the appellant’s submission that there was a real possibility that he would face prolonged or indefinite detention as a legal consequence of a non-revocation decision. The Full Court stated that the AAT “reasoned that whether or not the appellant faced the prospect of indefinite detention depended upon a number of possibilities including the outcome of any application made by the appellant for a protection visa” the outcome of which it said “could not be speculated upon”: [31].

61    Before me, the Minister referred to the Full Court’s observation in RRFM that “the fact that the [AAT] did not express itself in terms of the ‘weight’ it placed on the possibility of the appellant being indefinitely detained is explained by the fact that the [AAT] was not willing to speculate about the prospect of the appellant being granted a protection visa”: [36].

62    The Full Court in RRFM concluded that the AAT was “not in any position to attribute any specific weight (e.g. substantial or slight) to this consideration”: [36]. It held that the AAT was not required to make any specific findings as to the likelihood that the appellant would experience prolonged or indefinite detention or as to the likelihood that the appellant would be granted a protection visa in the future: [37].

63    The Minister submits that RRFM supports his submission that it was permissible for the Tribunal to give the consideration of the length of the applicant’s likely detention neutral weight, in circumstances where it was not in a position to say how long the applicant might be detained. The applicant accepted that RRFM stands for that proposition. I do not understand the Minister to place reliance on RRFM more broadly than length of detention in terms of the legal consequences.

CMP25 v Minister for Immigration and Multicultural Affairs

64    In CMP25, Raper J considered an application for judicial review of the Minister’s decision, under s 501BA(2) of the Act, to set aside a decision of the AAT and cancel the applicant’s visa. In CMP25 the Minister afforded “no weight” to the legal consequences of his decision because the Minister “was aware that the applicant would remain in detention until removed and it was not known at that time for how long”: [51]. It was not known, in circumstances where the applicant had previously been denied a protection visa (and had ultimately withdrawn his review proceedings of that protection visa decision), “whether the applicant would make a request under s 48B, whether the Minister would allow such a request to be made, when any protection visa application would be decided, and what the outcome of such a process might be”: [51].

65    Referring to the Full Court’s decision in RRFM at [36]-[37], Raper J held that there was “no error” in the Minister not attributing any specific weight to a factor which was uncertain, being the length of detention: [52], [58] (noting that her Honour’s reference at [58] to the “Tribunal” was clearly intended to be a reference to the “Minister”). The Full Court on appeal in CMP25 FCAFC affirmed Raper J’s reasoning: see [30] (Perry, Cheeseman and Shariff JJ). In doing so, the Full Court emphasised the broad “decisional freedom” afforded to the Minister when determining the weight to be given to various considerations when exercising the personal power in s 501BA, which only requires satisfaction that the visa holder does not pass the character test and that cancellation is in the “national interest”: [21], [23], [26].

66    The applicant submits that the circumstances of CMP25 can be distinguished from the present matter because contrastingly, there was “significant ambiguity” to the legal consequences of the decision. The procedural background to CMP25 as set out at [4]-[15] of Raper J’s decision explains that there, the parties had also engaged in review processes regarding the Minister’s refusal to grant the applicant a protection visa.

67    The Minister submits that Raper J’s decision in CMP25 supports the Minister’s submission that it was permissible for the Tribunal to give the consideration of legal consequences of its decision neutral weight. Notably, he does not submit that the circumstances in CMP25, or the other cases on which he relies, are identical but rather that they establish principles consistent with the manner in which the Tribunal in the present case considered the legal consequences of its decision.

XPLW v Minister for Immigration and Multicultural Affairs

68    In XPLW, Horan J considered a decision made by the Assistant Minister for Immigration under s 501BA of the Act to set aside a decision of the AAT revoking the mandatory cancellation of the applicant’s visa, and to instead cancel the visa. One ground of review raised by the applicant was that “the Minister had irrationally or unreasonably failed to give weight to the legal consequences of his decision, being that the applicant would remain in immigration detention until any protection visa application was determined or until he abandoned any such protection application”: [41]. Justice Horan referred to the applicant’s arguments directed to the “consequences” that if he were to apply for a protection visa, he would remain in detention until the application was determined, whereas if he did not make such an application he would be forced to return to a country in which he claimed to fear harm. His Honour stated that it “might be open to debate whether those matters are properly characterised as legal consequences of the Minister’s decision to cancel the … visa under s 501BA, as opposed to factual scenarios that were likely to arise following such a decision”. On the other hand, his Honour observed that “it can be accepted that a direct legal consequence of the Minister’s decision was that the applicant became liable to detention as an unlawful non-citizen under s 189 of the Migration Act”, a consequence of which the Minister was demonstrably cognisant: [51].

69    With regard to RRFM and CMP25, Horan J held that the Minister was not required to speculate on the possibilities that the applicant might apply for a protection visa, how long it may take for a decision to be made on a protection application or whether the Minister might invite the applicant to apply for a bridging visa: [59]. Further, Horan J held that “it was neither irrational nor unreasonable for the Minister not to attribute any specific weight to the likelihood that the applicant would be detained until the determination of any protection visa application or until his removal from Australia, as a statutory consequence of the cancellation of his Partner visa”: [59].

70    The Minister submits that the approach taken by the Tribunal in the matter before me was directly consistent with Horan J’s decision in XPLW, that it was not irrational or unreasonable for the Minister to take the approach of affording the consideration of the legal consequences of the decision neutral weight. The applicant contends that XPLW should be distinguished because the error alleged was different, and further that the legal consequences identifiable in XPLW did not call for the kind of speculation that Horan J found the Minister was not required to engage in. The applicant says that XPLW could be distinguished because in this matter “there was certainty as to the actual consequences of the decision, which was the applicant’s removal” because there was no guarantee that he would apply for a protection visa. The applicant also suggests a distinction because “the complaint there was directed towards the length of the detention that would flow should … assessment of [XPLW’s] claims be deferred, and should he subsequently make an application for a protection visa”, whereas here “the error is put … that the direct statutory legal consequence of the decision was ignored, or did not obviously factor into the conclusion” or was not considered reasonably.

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

71    In Singh, Rangiah J determined an application for judicial review of a decision of the AAT under s 501CA(4) of the Act which affirmed a decision of a delegate of the Minister to not revoke a decision to cancel the applicant’s visa. There, the applicant alleged that in determining that the legal consequences of its decision should be ascribed “neutral weight”, the AAT had misinterpreted or misapplied either s 501CA(4) of the Act or cl 9.1 of the former Direction 99 and that the finding was illogical, irrational or unreasonable: [14].

72    At [23]-[36], Rangiah J examined the AAT’s findings in relation to the legal consequences of a non-revocation decision, which included that the applicant would continue to be detained pending removal. The AAT identified that other than applying for a protection visa, the applicant had no other visa options available and “would be deported”: [25]. In its reasons, the AAT stated “[w]hilst these are inevitable legal consequences of an adverse decision, they are the consequences intended by the Parliament”: [25]. The AAT stated that it would “defer” assessment of the applicant’s non-refoulement claims to the protection visa pathway and determined to give neutral weight to the consideration of the legal consequences of its decision: [26]-[27].

73    Justice Rangiah held that in attributing neutral weight to the legal consequences of its decision, the AAT misconstrued s 501CA(4) of the Act (at [35]) because Parliament’s intention was that in deciding whether or not to revoke a cancellation decision, the decision-maker must take into account the legal consequences of the decision and further that the decision-maker would “determine for itself the weighting it should attribute to the legal consequences of the decision under consideration”: [33]. Justice Rangiah described “an element of circularity” in the AAT’s reasoning in this respect: [31].

74    There was a further reason why the AAT in Singh attributed “neutral weight” to the legal consequences of its decision. That reason was that the AAT considered that the applicant’s removal and exclusion from Australia “were merely possible, and not inevitable, consequences of such a decision”: [36]. Justice Rangiah said that by reasoning in this way the AAT had failed to comply with the requirement to take into account the direct and immediate legal consequences of an adverse decision, which included that “the applicant was immediately made liable to detention, removal from Australia and preclusion from returning”, and that this amounted to a jurisdictional error: [38]-[39].

75    As a further basis of jurisdictional error, his Honour noted that the AAT “initially identified an inevitable legal consequence of a non-cancellation [sic: non-revocation] decision as being that the applicant would remain in immigration detention” but it did not refer to that factor again and it was “not apparent” why the AAT decided that no weight should be given to that consequence. His Honour determined that the AAT “could not logically or reasonably have concluded that the continuing detention of the applicant did not weigh to at least some extent in favour of revocation”: [42]. That is, having acknowledged the legal consequence of the decision being to render the applicant liable to detention, it did not logically or reasonably explain why that legal consequence weighed neutrally.

76    The Minister submits that the circumstances of Singh are distinguishable from the application currently before the Court. He says that in Singh, the AAT firstly misconstrued s 501CA(4) of the Act but also “disabled itself from assessing the probability of the potential legal consequences it had identified occurring”: [41]. Whereas, he says, in the present circumstances the Tribunal expressly engaged in the consideration of the legal consequences.

77    In CMP25, Raper J distinguished Singh on the basis that the Minister’s reasons in CMP25 were “transparent as to why he considered [that] the fact of the applicant being taken into detention to neither weigh in favour of, nor weigh against, the applicant”: [59]. In the same paragraph Raper J also observed that Singh did not provide authority for “the proposition that it is not open for the Minister to not attribute any weight to the legal consequences of the decision” but rather that Singh “exposes error” in not attributing weight to the legal consequences because of a misunderstanding of Parliament’s intention in respect of s 501CA(4): [59].

Le v Minister for Immigration and Citizenship

78    In Le v Minister for Immigration and Citizenship [2026] FCA 774, Lee J determined an application for an extension of time and for judicial review of a decision of the Tribunal that affirmed the decision of a delegate of the Minister not to revoke the mandatory cancellation of the applicant’s visa. There, the Tribunal’s reasons canvassed the legal consequences of the decision as identified by the applicant as detention of indeterminate length, limited opportunity to apply for another visa while in Australia, and permanent exclusion from Australia: [23]. The Tribunal said that “these are intended legal consequences” and determined to weigh that conclusion neutrally: [23].

79    Justice Lee found, in the matter before him, that the Tribunal erred in its characterisation of the legal consequences of its decision as “intended legal consequences”: [44]. Justice Lee stated that the fact that the legal consequences faced by the applicant arose under the statutory scheme did not itself explain why they should be treated as neutral and described the “circularity” of the Tribunal’s reasoning in that respect: [47], [50].

80    The Minister submits that the error identified by his Honour in Le was similar to the first error identified by Rangiah J in Singh. The applicant accepts that the error in Le is of a different character to the one he alleges in this matter.

Conclusions on the alleged unreasonableness to afford neutral weight

81    As explained, in the present matter, the Tribunal’s acknowledgement of the consequence of being “liable to be detained” and removed, was considered together with the inference that a protection visa application will be made, and together with a reluctance to speculate about uncertain future events. It is that balance that led to the Tribunal’s neutral result.

82    The applicant accepts that once the Tribunal has considered the legal consequences of its decision, and the representations made by the applicant, it is a matter for the Tribunal to determine what weight to give to those matters, subject to principles of legal unreasonableness: Plaintiff M1 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ).

83    The applicant also accepts that if the Tribunal does not make a finding about the likelihood of particular consequences occurring, on the basis that the likelihood of those consequences is a matter of speculation, it is open for the Tribunal to afford no weight to those consequences.

84    Unlike Singh, the weighing exercise here did not involve the Tribunal “disab[ling] itself from assessing the probability of the potential legal consequences it had identified occurring”: Singh at [41] (Rangiah J). Rather it weighed the matters at [81] above together. I do not consider that process to be unintelligible or unreasonable.

85    There is also no suggestion, unlike in Singh and Le, that the legal consequences were given no weight because the Tribunal considered they were “consequences intended by the Parliament” or “intended legal consequences”. An error of that kind does not arise in this case.

86    Relatedly, I do not consider that it was unreasonable for the Tribunal to draw the inference that a protection visa application will be made by the applicant, as part of that weighing exercise. The applicant had expressly submitted that Australia owes to him international non-refoulement obligations “because there is no place in Liberia he would be ‘safe from serious and significant harm’”, and there is “no effective protection available from Liberian authorities, and no safe third country to enter or reside” in.

87    I consider the Tribunal’s reasoning was consistent with the reasoning in CMP25. In CMP25 the Minister was found to be transparent as to why he considered consequences neither weighed in favour of, nor weighed against, the applicant. The Full Court endorsed the reasoning of Raper J in CMP25 FCAFC. I accept that the nature of the Tribunal’s consideration of the legal consequences here was sufficiently transparent so as not to be unintelligible or unreasonable.

88    Likewise, I accept this matter is relevantly analogous to XPLW. There Horan J held “it was neither irrational nor unreasonable for the Minister not to attribute any specific weight to the likelihood that the applicant would be detained until the determination of any protection visa application or until his removal from Australia, as a statutory consequence of the cancellation of his Partner visa”: [59]. In reaching that conclusion Horan J acknowledged (as the Tribunal did here) that a “direct legal consequence” of the Minister’s decision was that the applicant became liable to detention as an unlawful non-citizen under s 189 of the Act: [51]. His Honour said the duration of any period of detention was unpredictable, as it would depend on the making and progress of any protection visa application by the applicant, as well as other possible contingencies: [51]. I accept, as the Minister contends, that expression of principle applies here despite any differences in the framing of the error in that case. I do not consider that there is a basis to say that Horan J’s approach was plainly wrong.

89    For those reasons I reject the applicant’s submission that the Tribunal’s path of reasoning was unintelligible. This aspect of the error alleged by ground one of the application fails.

Ground two – Was there an error in refusing the pseudonym?

Was the refusal illogical or unreasonable?

90    The applicant submits that it was illogical or unreasonable to refuse his request for a pseudonym in circumstances where he pressed his non-refoulement claims in respect of Liberia.

91    The Minister submits that it was not legally unreasonable to decline to make the order in circumstances where:

(1)    the applicant had no automatic statutory entitlement to a pseudonym;

(2)    the Tribunal properly had regard to the matters under s 71(2) of the ART Act;

(3)    significant personal information about the applicant was already on the public record and contained in the County Court’s sentencing remarks and the material already filed in the Tribunal by the applicant; and

(4)    there was no evidence of harm resulting from the disclosure before the Tribunal.

92    As explained above, it is a matter for the Tribunal to determine what weight to give to the relevant matters, subject to principles of legal unreasonableness.

93    It is clear from [11] and [12] of its reasons that the Tribunal had regard to the submissions and claims of the applicant, the “general rule” that the substantive hearing of a proceeding in the Tribunal must be in public, and the considerations set out in s 71(2) of the ART Act.

94    The Tribunal concluded that the reasons advanced for a confidentiality order were “insufficiently cogent to depart from the default position of a public hearing and public availability of evidence”. There is nothing unreasonable or illogical in that weighing exercise.

95    The applicant complains that the weighing of what was already on the public record as contained in the County Court’s sentencing remarks was improper because the applicant’s plea in the County Court did not involve him canvassing his concerns about Liberia or the fear he felt should he be returned to Liberia. However, that is a complaint about weight rather than an illogical or unreasonable outcome.

Was there any jurisdictional error in the review?

96    The applicant further said that the Tribunal’s deferral of the applicant’s protection claims while simultaneously refusing to grant the pseudonym “had the effect of frustrating or, essentially, rendering null the statutory protection that would be afforded to him on an application for a protection visa and, to some extent, would cruel his claims for protection should they eventually come to be litigated” and on this basis, it constituted a jurisdictional error. The Minister submitted that even if the applicant established ground two, it would not follow that the Tribunal’s decision on what is now the subject of ground one was affected by jurisdictional error. The applicant accepted this at the hearing.

97    Having found that the refusal to grant the pseudonym was not illogical or unreasonable, and having found that there was no jurisdictional error in ground one, I find that there was no jurisdictional error in the Tribunal’s refusal to grant a pseudonym order. Ground two is therefore dismissed.

Disposition

98    For the reasons set out above the application is dismissed.

Associate:

Dated:    19 August 2026