Federal Court of Australia

BXY20 v Minister for Immigration and Citizenship [2026] FCA 1187

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be allowed.

3.    Orders 2 and 3 of the primary judge be set aside and replaced with orders that:

(a)    A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent relating to the applicant and dated 1 April 2020.

(b)    A writ of mandamus issue directed to the second respondent, to be constituted by a reviewer different from the reviewer who previously considered the matter, requiring it to determine the referred decision of a delegate of the first respondent according to law.

(c)    The first respondent pay the applicant’s costs.

4.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The appellant, her husband and two infant twin children first arrived in Australia as “unauthorised maritime arrivals” in April 2010. Shortly thereafter, the applicant and her husband made separate requests for refugee status assessments. They claimed that they were stateless Faili Kurds from Iran where they faced persecution and discrimination.

2    Having been assessed as meeting the relevant definition of refugee, the appellant and her husband were permitted to lodge protection visa applications. The appellant applied for a protection visa, claiming she was a stateless Faili Kurd, born in Iraq, but most recently residing in Iran. Her husband made the same claim.

3    In April 2011, the appellant, her husband and their twin children were granted protection visas.

4    In December 2014, a third child was born to the appellant and her husband. The child was born in Australia and is an Australian citizen.

5    Four years after the grant of their protection visas, the appellant and her husband submitted applications to obtain Australian citizenship by conferral. During the application process, they disclosed that they were both born in Iran as Iranians citizens of Faili Kurdish ethnicity and that what they had previously stated about having been born in Iraq and being stateless was false.

6    As a consequence, the appellant and her husband were sent notices under s 107 of the Migration Act 1958 (Cth) giving particulars of their possible non-compliance with s 101 (which requires visa application questions to be answered correctly) and that the Minister was considering cancelling their protection visas under s 109 (which grants a discretion to cancel a visa because incorrect answers were given).

7    The appellant responded to the notice, conceding that the decision to grant her a protection visa in 2011 was substantially based on incorrect information. She provided reasons and information in support of a request that the Minister not exercise the discretionary power under s 109 of the Act to cancel her protection visa.

8    In May 2019, a delegate of the Minister decided to cancel the appellant’s protection visa. The delegate found that the appellant had not complied with s 101 of the Act and that the non-compliance outweighed discretionary reasons not to cancel her visa. The appellant’s husband’s protection visa was also cancelled, presumably for the same reasons.

9    The appellant and her husband applied to the Administrative Appeals Tribunal for review of the delegate’s decision to cancel their visas. Materials in support of their review were provided to the Tribunal, and they attended a joint hearing before the Tribunal and were interviewed concurrently. That is to say, the appellant’s review application and that of her husband and their twin children were heard concurrently.

10    In April 2020, the Tribunal made a decision affirming the delegate’s decision to cancel the appellant’s visa. The Tribunal made a separate decision affirming the delegate’s decision to cancel the appellant’s husband’s visa which led to the consequential cancellation of the visas of the twin children under s 140(1) of the Act.

11    In May 2020, the appellant applied to the Federal Circuit and Family Court of Australia (Division 2) for judicial review of the Tribunal’s decision.

12    The appellant’s judicial review application was heard in Division 2 in April 2025, and judgment was delivered just a few weeks later. The primary judge dismissed the application.

13    A separate review application was brought by the appellant’s husband and twin children which was heard separately by a different judge in Division 2 in August 2025. Their application succeeded – Judge Skaros quashed the decision of the Tribunal and remitted the matter to the Tribunal for reconsideration: BYF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1388.

14    There was an almost complete overlapping of relevant facts and circumstances between the s 109 decisions regarding the appellant and her husband: they arrived in Australia together with their twin children, they recorded the same false information in their protection visa applications, they were granted protection visas on the same basis, the falsity of that information was revealed when they both applied at the same time for citizenship, in the meanwhile they had a third child together, the family of five continued to live together, they submitted information and submissions to the Tribunal and were interviewed concurrently, and they had a common interest in their children’s best interests and in maintaining the family unit.

15    Given that overlap and interrelationship, the Tribunal’s similar decisions cancelling each of the appellant’s and her husband’s visas, and the identical grounds of review, the two review applications should obviously have been heard together. It is not apparent why that did not occur, the primary judge who heard the appellant’s application merely noting in his reasons for judgment that there were separate applications and that the parties did not explain why the matters were not heard concurrently in Division 2.

16    On inquiry, I was advised on the hearing of the appeal before me that the Tribunal reconsidered the husband’s protection visa and substituted the decision of the delegate with a decision not to cancel the visa under s 109. The result is that he and the two children who were not born in Australia now have the right to remain in Australia, as does the third child who is an Australian citizen. That is beside the point for the present appeal and I put it to one side. It is nevertheless highly irregular and contrary to the proper administration of justice for the two review applications to have been heard separately in Division 2 – it led to conflicting findings on what is in substance the same case and could have resulted in grave injustice if the second Tribunal had affirmed the cancellation of the husband’s visa in part on the ground that the wife’s visa was cancelled. Responsibility for that lies with the parties and the primary judge for having allowed that to occur.

The material before the Tribunal

17    Understandably, the appellant placed significant emphasis on the interests of her minor children in Australia in her application before the Tribunal. She gave evidence about how well they are doing at school, including numerous achievements and awards that they have earned and their efforts and contribution at school. At that time, the twins were 10 years old and the third child was soon to be five years old.

18    She explained that the twins were born in Iran and left Iran with the appellant and her husband before their first birthday. They have lived for most of their lives in Australia and they are fully integrated into the Australian community. The third child was born in Australia in 2014 and has always lived in Australia. She is an Australian citizen. She is also fully integrated into the Australian community.

19    The appellant explained that she and her husband have never been separated from the children. She gave evidence about the twins’ attendance at a particular public school, and how well integrated they are at the school. They are completely fluent in English, with their ability to read, write and speak English being on a par with any other 10-year-old Australian child. She also gave evidence about the likely detrimental impact on the children if the family were removed to Iran, including that the children are able to speak only basic Farsi which is the medium of instruction in Iranian schools. The twins have no meaningful experience of Iran and the third child no such experience.

20    Significantly, the appellant stated that if her and her husband’s visas were cancelled, they and the twins would be unlawful non-citizens and may be detained and liable for removal. The third child would be separated from them if they were detained pending removal from Australia.

21    In their submission to the Tribunal, the appellant’s representative placed considerable emphasis on the position of the children. Various articles of the United Nation’s Convention on the Rights of the Child (1990) were referenced, and it was submitted that Australia would be in breach of its treaty obligations if the third child, who has a medical condition, had to live in Iran. It was said that she has current and future medical needs which are of paramount consideration – it was said that as she is an Australian citizen she is entitled to the level of care as well as education and lifestyle Australia offers for her.

22    Evidence in support of the third child’s medical condition was put before the Tribunal. That included evidence that she has a congenital heart condition for which she has been under treatment at a children’s hospital in Sydney since her birth. She had surgery for her liver in 2015. At the time the evidence was prepared, she was regularly monitored for her heart condition every six months.

The Tribunal’s decision

23    Like the primary judge, the Tribunal erroneously referred to the appellant as having arrived at Christmas Island as “an illegal maritime arrival”. The correct terminology, which carries less pejorative connotations, is “unauthorised maritime arrival” (s 5AA of the Act). The notion of illegality is something potentially quite different from the notion of lacking authority.

24    There was no issue before the Tribunal that the appellant had provided incorrect information when she applied for her protection visa which enlivened the power to cancel that visa under s 109 of the Act. The Tribunal’s reasons deal chiefly with discretionary factors as to whether the power to cancel the visa should be exercised.

25    In relation to the children, the Tribunal recorded that the appellant claimed that the third child would be separated from her and her husband if their visas were cancelled, and she was asked why that was the case. The answer was that the child was an Australian citizen, but the Tribunal put to the appellant that the child would also be an Iranian citizen so they would not be separated. (As an aside, I note that the evidence was that the third child had no Iranian documentation, but would appear to be entitled to Iranian citizenship as the child of Iranian citizens.)

26    The Tribunal also recorded the appellant’s claim that the third child’s medical treatment would be better in Australia, and also that by the time of the interview her heart condition was monitored every year rather than every six months as previously stated.

27    The Tribunal also recorded the representations made on behalf of the appellant including that the third child would have better life opportunity in Australia than in Iran. It was said that the healthcare would be much better than in Iran.

28    In the “analysis” section of the Tribunal’s reasons, in relation to the third child’s medical condition the Tribunal was not satisfied that the child would be unable to get appropriate care in Iran. The Tribunal recorded that country information indicated that paediatric coronary care was available in Iran and that no compelling evidence was presented that her medical condition was such that she would suffer serious harm if the family returned to their native Iran.

29    With regard to the likely consequences of a decision to cancel the appellant’s visa, the Tribunal acknowledged that the twins’ visas might be cancelled and that it was “possible that the appropriateness of [the third child’s] citizenship may also be re-examined”. The Tribunal considered that those likely or possible consequences of the cancellation of the appellant’s visa “are reasonable, given these administrative sanctions are the consequence of the visa-holder obtaining a protection visa by providing false information”. The Tribunal therefore gave little weight to the consequences of the visa cancellation decision.

30    The Tribunal concluded as follows with regard to the position of the children in the event that the appellant’s and her husband’s visas were cancelled (as written):

69.    … I have also had regard to the Conventions on the Rights of the Child and do not accept that the visa cancellation and subsequent return of either the visa-holder or her children to Iran would breach any of Australia’s non-refoulement obligations.

70.    I have considered the best interests of the children, but find that they would be best met by maintaining the integrity of the family unit and all returning to Iran. The children (including the Australian citizen) are all able to access Iranian passports and could return to Iran as the one family unit. Whilst I note that the children have attended Australian primary schools for several years the reality is that they were only able to do so because their parents fabricated their identities, nationality and claims. The children are still young and would be able to integrate back into Iranian society. I do not accept that the children couldn’t go to school because the family was poor, given that free education is available to Iranians from primary through to tertiary level. They have extended family members still in Iran that could assist in the reintegration.

…

74.    While I accept that their removal to Iran would represent a major disruption to the family, the reality is that the visa-holder and her family would never have been granted a protection visa in the first place if she had not lied about her identity and citizenship. Given the gravity of that offence, I do not find it reasonable to exercise any discretion in this instance with respect to the cancellation of the visa.

The proceeding in Division 2

31    There was one ground of judicial review before the primary judge, namely that the Tribunal made a jurisdictional error by failing to give proper consideration to, or being legally unreasonable with respect to, the best interests of the appellant’s children. The ground of judicial review was expressed as being supported by a number of propositions. Insofar as they remain relevant, they are the following:

(1)    The Tribunal was obliged to give proper consideration to the best interests of the appellant’s children as the appellant had expressly raised those interests, including by reference to the Convention on the Rights of the Child. There was, and is, no dispute about this proposition.

(2)    The Tribunal failed to give such consideration where it does not have regard to the best interests of the children for and against cancellation of the visa and instead approached those interests through the prism of cancellation of the visa.

(3)    The Tribunal (at [70] of its reasons) failed to give proper consideration to the best interests of the children. It approached the best interest on the basis that the family unit should remain together by returning to Iran instead of asking whether those interests indicated that the family unit should remain in Australia. The Tribunal also took into account a matter irrelevant to the best interests of the children being the fact that the children had been in Australia due to their parents’ deceptive conduct.

(4)    The Tribunal likewise reasoned illogically by approaching the best interests of the children on a weighted premise, being their return to Iran, and holding against the children deceptive choices made on their behalf by their parents.

(5)    The Tribunal failed to consider the particular interests of one of the children who is an Australian citizen.

32    The primary judge identified the evidence and submissions before the Tribunal concerning the three children and the manner in which the Tribunal considered their interests.

33    In relation to the discretionary power to cancel a visa under s 109 of the Act, the primary judge noted that after having regard to, amongst other things, “any prescribed circumstances” the Minister may cancel the visa (s 109(1)(c)). Those circumstances are prescribed by reg 2.41 of the Migration Regulations 1994 (Cth).

34    Further, the primary judge identified that the Procedures Advice Manual, known as PAM3, sets out Departmental policy concerning provisions of the Act and Regulations. It is provided in PAM3 that delegates are required to consider four matters, even if not specifically raised by the visa holder, one of which is whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation. PAM3 gives as an example, “if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children” (my emphasis).

35    Counsel for the appellant apparently relied heavily on RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 201; 295 FCR 365 as the foundation to the submission that the Tribunal failed to properly consider the best interests of the children in the ways identified in the propositions recorded above cited in support of the ground of review. However, the primary judge distinguished RGCZ as having been decided in a “statutory context” that was “significantly different” (J [43]). That significantly different context included a direction under the Act that required decision-makers to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is or is not in the best interests of a child affected by the decision.

36    It was on the basis of that distinction that the primary judge rejected the submission that the Tribunal erred by not asking whether the best interests of the children would be met by refusing to cancel the appellant’s visa. The primary judge held that RGCZ was not an applicable authority, and no other authority was referred to, in support of the submission (J [43]-[47]).

37    The primary judge rejected the submission that the Tribunal introduced a matter not relevant to the best interests of the children, being the moral culpability of choices made by their parents over which they had no control. His Honour considered that the Tribunal did not discount the best interests of the children because of their parents’ behaviour in making the observation that the children were only able to attend Australian primary schools because their parents had fabricated their identities, nationality and claims (J [48]).

38    The primary judge rejected the contention that the Tribunal had failed to individually consider the best interests of the youngest child who is an Australian citizen. His Honour found that it was clear from the Tribunal’s reasons that it was aware that the youngest child is an Australian citizen and took this into account in considering the best interests of the children (J [50]).

39    In the result, the application for judicial review was dismissed.

The grounds of appeal

40    Appeal ground 2 was not pressed, leaving the following grounds.

41    By appeal ground 1, the appellant contends that the primary judge erred in finding that the Tribunal had not made a jurisdictional error by failing to give proper consideration to, or being legally unreasonable with respect to, the best interests of the appellant’s children.

42    By appeal ground 3, the appellant contends that the primary judge erred in finding that the Tribunal had not failed to consider the particular interests of one of the children who is an Australian citizen.

43    By appeal ground 4, the appellant contends that the primary judge erred in finding that it was sufficient that the Tribunal had taken into account that the youngest child is an Australian citizen.

44    By appeal ground 5, the appellant contends that the primary judge should have found that the Tribunal was not genuinely concerned with the children’s best interests and thereby acted in a procedurally unfair manner.

Consideration

45    It is not contested that the Tribunal was obliged to consider the best interests of the children as a primary consideration in circumstances where the appellant was not given advance notice that the Tribunal did not intend to make its decision in that way. That flows from Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 (at 291-292 per Mason CJ and Deane J, 302 per Toohey J and 304-305 per Gaudron J) and from the PAM3 referred to by the primary judge. All the grounds of appeal, as with the ground of review below, are directed at the question whether the Tribunal satisfied that obligation.

46    It is convenient to consider, in chronological order, some key cases that deal with the interests of children in this context.

47    In Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5; 150 ALR 608, it was held, following Teoh, that, in the absence of any advance notice to the appellant that the best interests of his children in Australia were not to be taken into account as a primary consideration in the decision whether or not to deport him, it would be procedurally unfair to not take those interests into account as a primary consideration (at 616 per Burchett J and 630 per Branson J). In finding error in the approach taken by it, Burchett J found that the Tribunal referred to the circumstances of the children “in terms that assumed the deportation would be carried out, and that ignored … their family and social ties with Australia and the broader disruption to their lifestyle and expectations which was to be brought about” (at 618). The Tribunal had reasoned that “the best interests of … three [of the appellant’s] children, viewed as a primary consideration, are to be served by a continuing close and daily relationship with their father, then the carrying out of the deportation order will best serve those interests” and that the “best interests of the [other] three … children will clearly be served by remaining part of the nuclear family and by moving to Tonga as contemplated” (at 618). His Honour found that the children’s best interests were not made a primary consideration, demonstrated in particular by the Tribunal having treated “the question, not as what the best interests of the children require him to decide with respect to the proposed deportation of the appellant, but what each set of children should do, given that their father would be deported” (at 618, original emphasis).

48    Justice Branson noted that the Tribunal stated in its reasons that it had regard to the best interests of the appellant’s children as a primary consideration, but found that nowhere had the Tribunal sought to identify “what would … be the result that would overall be conducive to the best interests of the children” (at 630-631). Her Honour concluded that although the Tribunal “purported to act on the basis that the best interests of the appellant’s children were a primary consideration before it, it did not in fact give proper, genuine and realistic consideration to the children’s best interests” (at 631).

49    In Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568; 107 FCR 133, again with reference to Teoh, it was held that since the Tribunal gave no notice that it proposed to make a decision about the appellant’s permanent residence visa which did not accord with the principle that the best interests of his children were “a primary consideration” in its decision-making process, he will have been denied procedural fairness by the Tribunal unless, in fact, it did act on the basis that the best interests of his children were “a primary consideration” (at [15] per Branson, North and Stone JJ). The Court found that of “particular significance [was] the failure of the Tribunal to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to [the appellant’s] application for a visa” and held that that “is the starting point for the tribunal’s consideration” (at [26]).

50    Building on what had been said in Vaitaiki (at 614 per Burchett J and 631 per Branson J), the Court in Wan (at [30]) identified the following matters as having been overlooked, in the sense of not considered, in relation to the best interests of the children in the event that their father was denied permanent residence and the family left the country with him:

(1)    that the children, as Australian citizens, “would be deprived of the country of their own … citizenship, ‘and of its protection and support, socially, culturally and medically, and in the many other ways evoked by, but not confined to, the broad concept of lifestyle’”;

(2)    “the resultant social and linguistic destruction of the childhood as well as the loss of their homeland”;

(3)    “the loss of educational opportunities available to the children in Australia”; and

(4)    “there resultant isolation from the normal context children with their mother and their mother’s family”.

51    With reference to what was said about what considering the best interests of the children entails in Wan, in Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450; 119 FCR 454 at [118], Allsop J essayed what it means to take into account the best interests of children as a primary consideration:

The interests of the children are considerations in respect of their human development – their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country. This is not a check list, but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision [of the Minister].

52    In DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184, the appellants, like the appellant and her husband in the present case, arrived from Iran and falsely claimed that they were stateless. Their first child arrived with them. They were granted protection visas. Another child was born to them in Australia who was an Australian citizen. Consideration was then given to cancelling their protection visas under s 109 because of the incorrect information that they had given when they had applied for the visas.

53    Justice Steward held that he was bound by Wan and Vaitaiki to hold that in the absence of having given advance notice of its intention to do otherwise, the Tribunal was bound to consider the best interests of the children as a primary consideration (at [29]-[34]). His Honour concluded that although the Tribunal had taken into account the best interests of the children, he was not satisfied that it had “appreciated the significance of the need to give those interests ‘primary’ consideration” (at [54]-[55]). His Honour further reasoned as follows (at [56]):

The deportation to Iran of a husband and wife who arrived in Australia around 10 years ago and who now have two young children at school, one of whom is an Australian citizen, is a serious matter. I do not think I should reject ground one based on guess work as to whether or not the Tribunal appreciated that the best interests of the children was a primary consideration to be weighed against the appellants’ non-compliance with the Act. With respect, the reasons do not expressly state that the decision maker understood that this was what was required, and I am not otherwise prepared to infer that she understood that this was what she needed to do.

54    In Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480, Allsop CJ reiterated what he had said in Perez, quoted above, about the nature of the matters to be considered as relevant to children’s best interests. His Honour characterised the approach of the Tribunal in the case before him as “one-dimensional” in concluding that it would be in the best interests of the child to have both her parents in one country and, given that the father was in Australia on a temporary visa, that meant that the best interests of the child would not be adversely affected by the cancellation of the mother’s visa (at [59]-[60]). His Honour agreed with the conclusion of Steward J in DXQ16 with regard to being bound by Wan and Vaitaiki, and that “[g]iven the one-dimensional approach taken by the Tribunal to the assessment of the best interests of the child, ... the Tribunal … failed to consider properly the best interests of the child and thus failed to afford [the mother] the procedural fairness required by Teoh” (at [71]).

55    Turning now to what the Tribunal did in the present case, the Minister submits that in the first sentence of paragraph [70] of it reasons – “I have considered the best interests of the children, but find that they would be best met by maintaining the integrity of the family unit and all returning to Iran” – the Tribunal made a positive finding on what decision will be in the children’s best interests, ie that the appellant’s protection visa be cancelled and hence she and the children return to Iran, and that that satisfies the requirement. The Minister submits that further inquiry into whether that decision is correct or justified would amount to impermissible merits review.

56    I am not satisfied that the Tribunal made the finding that the Minister contends for. In the context of the Tribunal having recorded in its reasons that it was put to the Tribunal that a cancellation decision would result in the separation of the appellant and at least her third child, the Australian citizen, I consider that the Tribunal recorded in that sentence its decision that it would be in the children’s best interests to maintain the family unit by staying together. That reading is supported by the next sentence which records the finding that the children are all able to “return to Iran”. Putting to one side the fact that the third child has never been to Iran so could not “return” there, that sentence shows that the Tribunal was proceeding from a default position that the visa should be cancelled, and from there considering what impact there would be on the children. That is also evidenced in the Tribunal’s consideration (at [41] of its reasons) of the medical care that the third child would get in Iran and its conclusion that it was not satisfied that she “would be unable to get appropriate care”. The Tribunal failed to make a finding on whether that child would get much better health care in Australia than in Iran as had been submitted to it.

57    That the Tribunal was proceeding from the default position that the visa would be cancelled is further indicated by its statement at [74] of its reasons that although removal to Iran would cause a major disruption to the family, “the reality is that the visa-holder and her family would never have been granted a protection visa in the first place if she had not lied about her identity and citizenship”. That is the same approach as was faulted in Vaitaiki (at 618) and it is exactly the kind of one-dimensional approach to be eschewed as recognised in Promsopa (at [59]-[60] and [71]). It also serves to unfairly cloud any inquiry as to the best interests of the children by discounting the benefits to them of remaining in Australia on the basis that they should not really be in Australia anyway.

58    As in Vaitaiki (at 618 and 630-631) and Wan (at [26]), nowhere does the Tribunal ask itself the question, what decision will be in the best interests of the children? Instead of that being its starting point, its starting point was to consider the ways in which the children would be affected by or would adapt to the visa cancellation. That approach fails to give primary consideration to the interests of the children, and it certainly fails to appreciate the nature and complexity of what makes up a child’s best interests as essayed in Perez (at [118]). As in DXQ16 (at [56]), it fails to identify the serious consequences the deportation of the appellant and her husband to Iran would have for their young children at school in Australia, including one who is an Australian citizen. It also fails to give any consideration to the deprivation of the Australian citizen child, not of her citizenship but of her country of citizenship “‘and of its protection and support, socially, culturally and medically, and in the many other ways evoked by, but not confined to, the broad concept of lifestyle’” (Wan at [30]). Indeed, nowhere are the third child’s best interests as an Australian citizen considered.

59    For those reasons, I am satisfied that the Tribunal’s decision is affected by jurisdictional error by having failed to give primary consideration to the best interests of the appellant’s children in circumstances where the appellant was not given advance notice that that was the approach that the Tribunal was going to take. Indeed, each of the propositions in support of the ground of review before the primary judge which are recorded at [31] above is established. The primary judge erred in concluding to the contrary: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [18] per Kiefel CJ, [20] per Gageler J, [117] per Nettle and Gordon JJ and [154] per Edelman J.

60    That said, I note that many of the cases that were relied on in the appeal were not relied on before the primary judge. In that respect, the case put on appeal was different from the case that was put to the primary judge. These being points of law, the Minister rightly did not object.

Disposition

61    For those reasons, the decision of the Tribunal should be quashed and the matter should be remitted to the Tribunal, differently constituted, for reconsideration.

62    The parties accepted that in the appeal the costs follow the result. The same goes for the costs below.

Associate:

Dated:    21 August 2026